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


Subject: Nels A. Herness vs. LIRC and Allied Pools and Spas, No. 01-3460 (Wis. Court of Appeals, District 3, July 30, 2002; Summary Disposition)

Please note that Wis. Stat. § 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.


Digest Codes: MC 617  MC 640.15  MC 665.12   MC 673

Herness began working for this retailer of pools, tubs and related accessories in February 1996. For the last two and one half years of his employment he was a store manager. In June 2000, another employee complained to Allied's president about several incidents in which Herness made comments of a sexual nature. She also stated that Herness hit her buttocks with his hand and opened the door on a bathroom after she had locked herself in. After reviewing the complaints, the president discharged Herness. The Labor and Industry Review Commission found that Herness had been discharged for misconduct and concluded that he was not eligible for unemployment insurance benefits. Herness sought judicial review and the circuit court affirmed the commission's decision. Herness appealed to the court of appeals. 

Held: The court of appeals reviews the decision of the commission, not that of the circuit court. The commission determines the weight and credibility of the evidence. A decision that conduct is misconduct is a question of law but the courts give great weight to the commission's decisions in those cases. Herness should have known, based on his experience and position, that his behavior was inappropriate and unacceptable. He continued that behavior even after multiple objections from the employee. Herness acted intentionally and contrary to the employee's wishes. His actions need not arise to the level of sexual harassment in order to constitute misconduct. His actions evinced an intentional and substantial disregard of the employer's interests. His arguments to this court are so patently without merit that they need not be specifically addressed. The commission decision is summarily affirmed. 


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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