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


LISA A WASHINGTON, Employe

MERITUS EDUCATION RESOURCES CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97603571MW


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 the applicable law, records and evidence in this matter, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about six months as an assistant teacher for the employer, a child care center. Her last day of work was April 9, 1997. She was discharged on April 15, 1997 (week 16).

The issue to be decided is whether the employe's discharge was for misconduct connected with her employment.

The employe was discharged because a classroom teacher found the employe asleep on a couch when she was in charge of a group of children. The teacher needed to call her three times to rouse her. The teacher suspected that the employe had also been asleep on prior occasions. The employer asserted that the employe's discharge amounted to misconduct because she was discharged as a result of sleeping on the job on her last day of work. The commission must agree. The employer is a child care center and when children are unsupervised a safety situation can quickly arise. The employer's policy states that sleeping while on duty is one of the causes for immediate dismissal from employment. Thus, the employe was or should have been aware of the importance of remaining awake and alert while in charge of the children.

The employe's actions, in sleeping while on duty, amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 16 of 1997 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04 (5).

The commission further finds that the employe was paid benefits for weeks 18 through 39 of 1997, amounting to a total of $2331.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum 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 employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 16 of 1997, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $2331.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 27, 1997
washili.urr : 145 : 1 MC 659.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ credited the employe's testimony, that she was not actually asleep, because she was sitting upright, and the children were talking loudly. Other times when the employe had been suspected of sleeping, the room was dark. Further, he reasoned that the employe may not have heard the teacher calling her immediately if they were surrounded by loud children. The commission disagrees with the ALJ's credibility determination for several reasons. In the first place, the employe was sitting on the couch, kind of cuddled in the corner. The teacher had to call her three times to rouse her. The employe had her head down, because it was hurting. The teacher who had ample opportunity to observe her, determined that she was sleeping. Given the circumstances, the commission concludes that the employe was asleep when she was sitting on the couch on her last day of work.


Appealed to Circuit Court. Affirmed May 15, 1998. [Summary of Court Decision].

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