Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Berkseth, Tamara K. v. State of Wisconsin Labor and Industry Review Commission and Dennis Simpson, S.C., Case No. 95-CV-129 (Wis. Circuit Court St. Croix County, October 26, 1996)

Digest Codes: MC 610.25   MC 640.03

The employe was a dental assistant for the employer, a solo practitioner dentist. The dentist testified that one of his patients complained to him that the employe had telephoned her at home and attempted to sell her Mary Kay cosmetics. The dentist warned the employe not to solicit patients for cosmetic sales because this was against his office policy of not soliciting customers for any type of sales. About seven months later, another patient complained to the dentist about a similar incident involving the employe. This resulted in her discharge. The employe asserted that at the time of the first incident, the dentist had not warned her that such actions were unacceptable. The commission found that there had been a clear warning and that the discharge was for misconduct.

The employe appealed, asserting that there had been no warning and that the commission erred by consulting with the administrative law judge before making its decision.

Held: The commission’s finding of misconduct is affirmed. The commission acted properly in consulting with the ALJ regarding the credibility and demeanor of the witnesses, and credible evidence supports its finding that the employe was warned not to solicit customers for sales of cosmetics.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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