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

TERRELL ARCHIE, Employee

AURORA HEALTH CARE METRO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607814MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately eight months, most recently as a patient care assistant, for the employer, a hospital. His last day of work was November 3, 2006, and he was suspended from his employment on November 6, 2006 (week 45).

On May 4, 2006, the employee was provided with a work improvement plan because, in part, he was falling asleep at work. He was warned that his continuing to do so could lead to further discipline. Thereafter, the employee was again observed sleeping at the workplace. On or about November 3, 2006, the employee again received reports that the employee had repeatedly fallen asleep while performing his work duties. On November 6, 2006, the employer informed the employee that he was suspended from his employment pending further investigation. At a meeting on November 8, 2006, the employee admitted to falling asleep at work during his work shift on November 2 and 3, 2006.

The issue to be decided is whether the suspension of the employee's employment during week 45 of 2006, was a disciplinary action for good cause connected with the employment.

In Messenger v. Fort James Operating Company, UI Dec. Hearing No. 99400520GB (LIRC August 13, 1999), the commission concluded, following a detailed statutory analysis, that only suspensions that were disciplinary fell within the purview of Wis. Stat. § 108.04(6). Specifically, in Messenger, a "proactive" suspension was found not to be a suspension within Wis. Stat. § 108.04(6). Similarly, the commission has found that suspensions for investigations are not disciplinary suspensions. Brown v. Jewel Food Store, UI Dec. Hearing No. 98605057MW (LIRC October 20, 1998).

The employee's suspension was to investigate allegations he was sleeping at work. The employee was later discharged for the same conduct, without ever returning to work. The commission concludes that the suspension was investigatory. Therefore, the employee is eligible for benefits during that week.

The commission therefore finds that in week 45 of 2006, the employee's employment was suspended but not as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 45 of 2006, if otherwise qualified.

Dated and mailed May 31, 2007
archite . urr : 178 : 1   MC 676

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not base its decision on any differing assessment of witness credibility. Instead, it reaches a different legal conclusion when applying the law to the same facts as those found by the ALJ.


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uploaded 2007/06/04