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

TALAT DAFILAJ, Employee

PATRICK CUDAHY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09602996MW


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 more than five years as an injector operator for the employer, a meat packing business. He was discharged on March 4, 2009 (week 10).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

On March 4, 2009, a coworker hid a dolly the employee used in performing his duties while the employee was on his break, and, when the employee returned from break, taunted the employee and directed profanity at him. When the employee told the coworker to shut up, the coworker hit the employee and the employee's helmet fell to the ground. While reaching for his helmet, the employee grabbed a large metal hook (exhibit #1) and used it to hit the coworker on the arm. The coworker then walked away from the employee.

The employee was discharged as a result of this incident.

The employee admits that he could have walked away after being struck by the coworker, and there were other workers present at the time.

The employee testified that he believed at the time he was picking up his helmet that the coworker intended to hit him again. However, the record does not show that the coworker made any move toward the employee at that time, or indicated by his actions or speech that he intended to do so.

The employer testified it has a work rule prohibiting fighting at the work site, and the employee admits he was aware of this rule.

Generally, it is misconduct when an employee uses physical force against another employee. Brown v. Grover Gear Division, UI Hearing No. 96600981RC (LIRC May 24, 1996). It has been uniformly held that a worker who engages in a physical assault on a coworker may be discharged for misconduct even though there may have been some provocation. See, Rogers v. Wisconsin Knife Works, Inc., UI Hearing No. 99001884JV (LIRC July 30, 1999), citing Relerford v. G.M. Assembly Division Janesville General Motors, et al., Case No. 139-434 (Wis. Cir. Ct. Dane Co. March 20, 1975). The commission has carved out a limited exception when an employee reasonably concludes that there is an imminent threat of physical harm, he is unable to escape and there is no one in the area who could render assistance to him, and he acts to defend himself as a result. See, Rogers, supra.; Robertson v. Mahler Enterprises, Inc., UI Hearing No. 03604155MW (LIRC Oct. 31, 2003); Jackson v. Wendy's Old Fashioned Hamburgers, UI Hearing No. 03604868MW (LIRC March 5, 2004).

Here, although the employee testified that he believed the coworker was going to strike him again, the record does not show that this belief was reasonably justified, i.e., does not show that the coworker was making a move toward him or had otherwise indicated he intended to strike the employee again. In addition, the record does not show that the employee was unable to escape. In fact, the employee testified that he could have just walked away. The record also shows that there were other workers in the immediate area to whom the employee could have turned for assistance, but he did not request assistance or, in fact, even report the fight after it was over. Moreover, and most significantly here, picking up a weapon and using it in an aggressive manner is not self-defense. If, for example, the employee had picked up the weapon as a warning to the coworker, it could be argued that he was acting in a defensive manner. The employee's actions, however, clearly exceeded what would have been reasonably necessary to defend himself, and the employee, in fact, became the aggressor.

The commission therefore concludes that the employee was discharged in week 10 of 2009 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,150 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2009, 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 $7,150 to the Unemployment Reserve Fund.

Dated and mailed September 18, 2009
dafilta . urr : 115 : 5  MC 670

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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