STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RUTHIE M MANEY, Employee

QUALITY ASSURANCE STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04603901MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,645.00 to the Unemployment Reserve Fund.

Dated and mailed August 31, 2004
maneyru . usd : 150 : 1 MC 640.01  MC 640.12  MC 688.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that her discharge was not for misconduct connected with her employment. Included with her petition were facts not presented at the hearing. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. This was explained in the "Important Hearing Information" section of the hearing notice sent to the parties in this matter. For this reason, the commission cannot consider and will not address the factual assertions made in the petition for review which are not supported by the record.

In this case, the petitioner was discharged for refusing to do a patient assessment when asked and her subsequent argument about the refusal with the employer's president. Her refusal was based upon her desire not to work later that her normal end time. In Gipson v. Marian Catholic Center, Inc., UI Dec. Hearing No. 98601313MW (LIRC March 17, 1999), the commission found misconduct for a single refusal to accompany a resident because the worker did not wish to work longer than the shift end time. Like Gipson, the employee's refusal was not reasonable, was serious and caused harm to the employer's interests. Further, while the employee had not been warned that her job was in jeopardy, an employer need not resort to some lesser degree of discipline than discharge merely because the conduct is a first offense. Nordberg Mfg. v. DILHR & Morgan, Dane County Circuit Court, Case No. 145-359, July 16, 1975). Thus, the commission adopts the appeal tribunal decision as its own.



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