JAMES M HELLER, Employee
LAKE OF THE TORCHES CASINO, Employer
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.
The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2011, 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.
Dated and mailed March 21, 2012
hellerj . usd : 102 : 1
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The employee petitioned the adverse appeal tribunal decision which held that his discharge was for misconduct connected with his employment. The employer discharged the employee for engaging "in horseplay with a very sharp knife, possibly putting [a co-worker] in serious danger." In his petition for commission review, the employee asserts that the garbage bag was in the garbage can at the time he swung the knife. He further maintains that the knife "was never near the other employee." In support of his argument, the employee requests that the commission review security tape. The commission's review must be based on the evidence submitted at the hearing which has already been held. Wis. Admin. Code § LIRC 1.04.
The administrative law judge credited the employer's firsthand witness who testified that she was "placing a garbage bag in the garbage can when the employee swung a knife in [her] general direction." As a result, the knife cut the garbage bag. The witness further stated that the knife had a blade that was five to six inches long and came within two or three inches of her. The commission has found no compelling reason in the record to question the administrative law judge's credibility determination. Therefore, it will defer to the judgment of the administrative law judge as to credibility.
The employee's actions on his last day of work jeopardized the safety of the workplace. He intentionally swung a knife at a garbage bag held by his co-worker. While the employee argues in his petition that his impulsive conduct was the result of his attention deficit disorder, this argument was not made at the hearing. After carefully reviewing the hearing record, the commission concludes that the employee's behavior demonstrated a reckless disregard of the employer's legitimate interests. Accordingly, the commission agrees with the findings of the administrative law judge and affirms the appeal tribunal decision.(1)
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uploaded 2012/04/27