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


DENNIS M RAINER, Employe

MILWAUKEE ATHLETIC CLUB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606151MW


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 eligible for benefits beginning in week 33 of 1999, if otherwise qualified.

Dated and mailed December 13, 1999
rainede.usd : 132 : 1 MC 659.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment and for misconduct connected with his work. The commission has reviewed the record in this matter and agrees with the appeal tribunal's findings of fact and conclusions of law. The employer acknowleged that the employe had reason to be in the area in which he was found in order to perform his job. The employer maintained that the employe did not appear ill earlier in the day. However, the employe's documentation contains diagnoses of heat related illness, not merely that the employe complained of heat related illness. In order to find misconduct in cases of sleeping on the job the employer must demonstrate that the employe acted intentionally. The employer's evidence did not establish such intent. The employer did not establish that the employe secluded himself in an area with the intent of falling asleep or that he acted negligently in failing to keep himself from falling asleep. The employe testified that the feeling overcame him when he was in the warm crawlspace.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms such decision.


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