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


DIANA D REED, Employe

BREED ELECTRONICS LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001522JF


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 7 of 2000, if otherwise qualified.

Dated and mailed August 2, 2000
reeddi.usd : 164 : 1    MC 640.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer attempts to supplement the hearing record with numerous factual assertions that were not presented at the hearing. However, by law the commission is required to base its review solely upon the sworn testimony and documentary evidence presented at the hearing before the administrative law judge. The commission, therefore, will not consider those factual assertions which the employer has presented for the first time in its petition for review, but will confine its review to that evidence which is already in the record.

The evidence adduced at the hearing established that the employe was discharged after refusing to performing a task which she felt would exceed her physical restrictions. The employer argues that, by way of a reasonable accommodation, the employe was told that three co-workers were assigned to assist her. The commission has considered this argument, but finds it unpersuasive. While the commission does not doubt that the employer intended to provide the employe with assistance so that she need not exceed her restrictions, a determination as to whether misconduct occurred depends upon an assessment of the employe's intent. The evidence adduced at the hearing demonstrated that the employe believed she required more than the occasional assistance of another worker to perform the task at hand and that she would be unable to perform the job safely unless someone were assigned to work beside her. The employe based this opinion upon having performed the job on previous occasions with the assistance of another worker. The commission agrees with the appeal tribunal that, where the employe genuinely and reasonably believed that she was being asked to perform work in violation of her restrictions, her refusal to operate the machine was justified and did not evince misconduct.

In its petition the employer also argues that no mention was made in the decision of the employe's chronic absenteeism and disruptive behavior, which contributed to the decision to terminate her employment. However, while the employer made passing reference to these issues at the hearing, it failed to demonstrate that the employe had a pattern of attendance violations or engaged in a course of workplace conduct so egregious as to support a finding of misconduct, nor is it clear from the record what weight those factors had in the decision to discharge her. Moreover, because the commission is unpersuaded that the employe's refusal to perform the sorting cell job was blameworthy, it is unable to conclude that it was part of a pattern of unsatisfactory conduct. Accordingly, the appeal tribunal decision is affirmed.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The employer told the employe she would have help she needed so she did not exceed her restrictions. The employer had three people lined up to help her when needed. The employe refused to do the work because she insisted that the employer needed to assign a person full time to assist her. The employer checked with Dr. Martin about the employe's ability to work on the sorting machines. Dr. Martin's letter to the employe's treating doctor indicated that she could load the machine without the use of a ladder.

The employer had accommodated the employe in the past for personal problems that affected her attendance record and did not hold that against her. There is nothing in the record to indicate that the employer was in any way requesting that the employe exceed her medical restrictions or that the employer would not give her help when needed. The employe should have tried doing the job and only then if she did not receive the necessary assistance was she in a position to refuse the work. Therefore, I believe that the employe's refusal of a work order was insubordination and thus misconduct connected with her work.


_____________________________________
Pamela I. Anderson, Commissioner


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