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


MARK O WAEDEKIN, Employe

DEPARTMENT OF HEALTH & FAMILY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97004197FL


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 employe is ineligible for benefits in weeks 30 through 33 of 1997.

Dated and mailed: March 19, 1998
waedema.usd : 135 : 1  MC 676

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has consistently held that good cause in a disciplinary suspension includes single, isolated acts of negligence or poor judgment of a type that the misconduct standard would not necessarily include. This standard in other words is considered to be a less stringent standard than the misconduct standard. See Allen D. Woepse v. US Postal Services, (LIRC 5/8/97). Therefore, applying the law to the facts at hand, the commission is satisfied that the employe's negligence amounts to good cause connected with the employe's disciplinary suspension within the meaning of Wis. Stat. § 108.04(6).

While the employer's proof may have been insufficient to establish a discharge for misconduct within the meaning of Wis. Stat. § 108.04(5), the employe established that the incident occurred while the employe was responsible for the patient's whereabouts. The employe argues that this analysis in essence applies a strict liability standard to the case. The commission disagrees. The employe was responsible for the patient's whereabouts. The patient was found outside of his room, while under the employe and other co-worker's charge. Under this less stringent good cause standard, the employe's negligence is sufficient to support a disciplinary suspension for good cause within the meaning of Wis. Stat. § 108.04(6).

NOTE: The result in this case is consistent with the commission decision in Dennis P. Lubenow v. DHFS.

cc: KARLA J SOUZEK
PERSONNEL MANAGER
DHFS WRC

ATTORNEY JOHN R EMERY
EMERY LAW OFFICE


Appealed to Circuit Court. Affirmed April 19, 1999. [Summary of Court Decision]

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