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

TONY A COLLINS, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06601902MW


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 eligible for benefits, if otherwise qualified.

Dated and mailed August 23, 2006
collito : 132 : 4  MC 665.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged, but not for misconduct connected with his work. The employer argues that the ALJ erred in ruling that the employee's discharge lacked sufficient temporal proximity to the conduct at issue, precluding a finding of misconduct. The commission affirms the appeal tribunal decision after considering the delay in discharging the employee to be a factor in deciding whether the employer established the conduct rose to the level of misconduct. The employer argues that the employee's conduct was egregious which should indicate that there was no doubt that the discharge was related to the incident. However, because the employer argued the conduct was so egregious, one would expect that the employer would have taken prompt action to discharge the employee. The employer allowed the employee to continue working for eight weeks. The purpose of a warning is to allow the employee to conform his behavior to the employer's expectations. There was no indication that after the employee had been last warned about his conduct that he repeated such unsatisfactory actions in the eight weeks prior to his discharge. The employer's delay in discharging the employee, the fact that the employer allowed the employee to continue in his position, and the fact that the employee was not shown to have engaged in unsatisfactory conduct after his last warning lead the commission to conclude that the employee's discharge was not for conduct that demonstrated a willful and substantial disregard of the employer's interests.


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uploaded 2006/08/28