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

Subject: Judith Ellenz v. LIRC and Regis Beauty Salon, (Ct. App. Dist. IV, No. 00-0781, February 8, 2001) (per curiam)

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 Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.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: PC 733

The employee, a beauty salon employee, was told in November that she would have to work late, until 10 P.M., on December 23. When she objected that she did not want to work the extra hours because she had no one to care for her baby, she was told she had to either find someone to care for her baby during the hours so she could work them, or find another employee who would work them for her. As of December 21, when asked if she was going to work the hours, she said she would work only until 7 PM. She had found someone to cover for her only from 9 PM to 10 PM. She was discharged and applied for benefits. She argued, in part, that she thought she only had to find someone to cover for her for the last hour of her shift, and not for the period from 7 to 9 when other employees would also be there. The Administrative Law Judge found no misconduct, reasoning that while the employee did not make much of an effort to find child care or a replacement worker, her actions in this one incident did not reflect such an intentional and substantial disregard of the employer’s interests as to amount to misconduct. LIRC reversed, holding that given the amount of notice she had and the lack of effort she made, her actions did constitute an intentional and substantial disregard of the employer’s interests.

LIRC did not consult with the ALJ, and it stated in its decision that it had not done so because it did not disagree with any credibility assessment made by the ALJ but reversed his decision because it reached a different legal conclusion when applying the facts to the law.

The employee appealed. She argued that her actions had not been misconduct. She did not raise any issue concerning LIRC’s failure to consult with the ALJ. The circuit court agreed with the employee that her actions had not amounted to misconduct, and it reversed. The circuit court did not address the matter of LIRC having failed to consult with the ALJ. LIRC appealed to the Court of Appeals. No argument concerning the consultation requirement was put before the Court.

Held: The Court of Appeals did not directly address the misconduct question; instead, it sua sponte raised the issue of LIRC’s failure to consult with the ALJ and concluded that consultation was necessary and that the reversal of the ALJ’s decision without such consultation was a denial of due process. The Court noted that LIRC had expressly rejected the employee’s testimony that she believed that her employer was only requiring her to find someone to cover the last hour the business would be open, and the Court also opined that the determination of misconduct in a case such as this one was in large measure dependent upon the employee’s intent. The Court stated, "[w]e are persuaded ... that the determination of the employee’s intent in this case necessarily involved an assessment of Ellenz’s credibility and demeanor." The reversal of LIRC’s decision was therefore affirmed on that basis, and the matter was remanded for LIRC to consult with the ALJ and issue another decision.

[Subsequent LIRC decision]

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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