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

Subject: Daniel J. Merkt (Hrg. No. 94603342MW) v. LIRC and Kettle Moraine Treatment Centers, Case. No 94-CV-594 (Wis. Cir. Ct., Fond du Lac County, January 4, 1996)

Digest Codes : MC 610.25  MC 640.03   PC 733

The employe was a drug and alcohol abuse counselor. After the husband of one of his clients expressed concerns about a possible romantic relationship between the employe and the client, the employe was instructed to cease all his therapeutic contacts with the client. However, he continued to have a number of contacts with the client, involving such matters as discussing referrals for her husband, and discussing problems that they had discussed in formal therapeutic sessions. He was fired for this reason. The commission concluded that the employe continued in contacts with the client which were of the kind that he knew, or should have known, the employer had instructed him to stop. His actions were therefore in complete defiance of the employer’s directives, and were misconduct.

Held: Affirmed. There is substantial evidence in the record that the contacts in question were essentially therapeutic in nature. The fact that the employe was aware of the need to disassociate from the client because any continuation of the relationship could be construed as continuing the alleged romantic relationship, was in itself sufficient notice to the employe that he should completely disassociate himself from the client. It was clearly a substantial disregard of the employer’s interests to continue the contacts. With respect to the employe’s argument about deference to the face-to-face fact-finder, the commission discharged its duty to extend such deference when it consulted with the administrative law judge. Once it did that, it was free to reject the substance of the ALJ’s conclusion on credibility and substitute its own. The court’s deference with respect to credibility is owed to the commission.

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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