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

Subject: Frank Balistreri (Hearing No. 92608572MW) v. LIRC and A. O. Smith Corp., No. 93-CV-016020; Appealed to Circuit Court; reversed (Wis. Cir. Ct. Milwaukee County, October 11, 1994, Frank T. Crivello, Circuit Judge);   Appealed to Court of Appeals; Circuit Court decision reversed and LIRC decision reinstated, Ct. App. No. 94-3217 (Wis. Ct. App. July 5, 1995) District 1, unpublished. [Court of Appeals decision]

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 Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is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 Summaries of unpublished Court of Appeals decisions are included in this collection as an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 605.09  MC 660.01

The employe began working for the employer as a welder in August 1972. In May 1988 the employe was discharged for having been out of his work area in March 1988. That discharge was changed to a disciplinary suspension with the understanding that a further violation would result in immediate discharge. He last worked as an assembler on second shift as part of a labor pool. On August 6, 1992, about one hour after his scheduled starting time, the employee was seen walking in a parking lot across the street from the plant premises. About one hour later the employe was seen by a supervisor and asked where he had been. After first stating that he had been in the office, the employe stated that he did not know where he had been. The employe was subsequently discharged. The employe claimed he was out of his work area by mistake because of medications he was taking. The commission found that the employe did not meet his burden of proving medical incapacity to form the necessary intent. The commission concluded that the employe had been discharged for misconduct and was not eligible for unemployment benefits.

The circuit court decided that no reasonable person could find that the employe had engaged in misconduct. It concluded that the evidence did not support a legal determination of behavior reflecting an intentional and substantial disregard of the employer’s interests or the employe’s duties. It held that being gone from his worksite for an hour is ordinary negligence in an isolated instance and reversed the Commission’s decision.

Held: On appeal the court of appeals reviews the decision of the administrative agency, not that of the circuit court. The evidence in the record amply supports the finding that the employe violated the work rule. In light of the employe’s discipline for a prior violation and in light of the deference that must be given to the commission, the circuit court is reversed. Commission’s appeal to the court of appeals is not frivolous. Benefits denied.

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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