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

Subject: Daniel P Donoghue v. LIRC and Stock Lumber of Delavan, Case 04CV000003 (Wis. Cir. Ct., Rock Co., April 19, 2005)

Digest Codes: MC 670

The employee was involved in a confrontation with a co-worker in which the co-worker provoked him by yelling loudly in his ear and startling him. The employee responded by swearing at the co-worker, kicking him in the backside, and pushing him up against a wall. The co-worker unsuccessfully attempted to push the employee away, but the employee was much taller and larger. The two workers had to be separated by a manager. After this incident, the employee was suspended pending an investigation. Based on its investigation, the employer determined that the employee kicked the co-worker and lied about having done so. The co-worker was issued a three-day suspension for his role in the incident, and the employee was discharged.

Although the employee denied having engaged in the conduct, the administrative law judge and the commission did not credit his version of events, particularly in the face of witness testimony to the contrary. The ALJ found misconduct and the commission affirmed.

Held: Affirmed. The court found that the commission’s factual findings were reasonable and noted that, under Wisconsin law, a physical assault generally constitutes misconduct, even when there is provocation. The court recognized an exception for an employee who reasonably concludes he is in imminent danger of physical harm, but agreed with the commission that the self-defense exception would not apply on the facts of this case.

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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