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

DENNIS J DILLINGER, Employee

MILLTOWN PAPER INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12402016AP


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 ineligible for benefits beginning in week 21 of 2012 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $1,815 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700) issued on May 24, 2012, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed August 30, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employee petitioned for commission review of the adverse appeal tribunal decision. The employee's petition raised several arguments to support his contention that his discharge was not for misconduct connected with his employment.

The employee's first argument, that two of the employer's witnesses lied, necessarily involves a credibility determination. Without itemizing each, the commission notes that in several instances the employee and employer provided conflicting evidence. As such, the ALJ was required to make credibility findings. The commission has found no compelling reason in the testimony or elsewhere in the record to question the ALJ's findings. The findings are supported by the record and are adopted by the commission.

It was clear that there was mutual hostility between the employee and his co-workers. However, although the employee may be correct in arguing that "it takes two to tango," it was determined that the employee was the instigator. He had a long history of disruptive conduct involving more than one co-worker.

The employee's second argument, that he never received a written warning or a suspension without pay for harassment like it states in the employer's handbook, is without merit. The record shows that the employee was expressly warned, in writing, in September 2008 by the company president that the employee would be discharged if he failed to stop being disruptive and making life miserable for his co-workers. The employee was specifically instructed to cease and desist his disruptive behavior and harassment. The employee was on notice that his job was in jeopardy.

The employee's third argument, that the employer should give him a chance to get a job and should pay him unemployment benefits until he finds one, displays a misunderstanding of the unemployment insurance program. A claimant's eligibility for unemployment benefits may not be determined through a private agreement negotiated between the claimant and his employer. Rather, it depends on the application of the provisions of the Unemployment Insurance Act to all relevant facts, including such things as the actions and intentions of the employee. Roberts v. Industrial Commission, 2 Wis. 2d 399 (1957). An employee who is found to have been discharged for misconduct connected with the employment is ineligible for unemployment benefits.

The employee's final argument is that, if he had subpoenaed employees from the company to testify on his behalf, the employer would have discharged all of them, too. The commission is not persuaded. Employers may not sanction workers for participating in the unemployment insurance process. Specifically, the unemployment insurance law, at Wis. Stat. § 108.24(3)(a)4, provides that anyone who discriminates or retaliates against an individual because the individual testifies in an unemployment hearing shall be fined or imprisoned or both.


dillide : 152

cc: Continental, Inc.


 

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uploaded 2012/09/26