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

Subject: Charles Ray Mallett v. LIRC and Lakeside Buses of Wisconsin, Inc., Case 04-CV-009914 (Wis. Cir. Ct., Milwaukee Co., March 30, 2006)

Digest Codes: PC 753 MC 670

The employee worked for the employer for three and a half years as a school bus driver. On April 27, 2004, the employee became involved in a confrontation in the employer’s parking lot with a co-worker and the co-worker’s friend. The employee’s sister and nephew, who were not employees of the employer, were also present and participated in the confrontation. At one point the employee directed his wife, who was waiting in the employee’s van, to get out of the van and tell the co-worker to “get out of his face.” When the employer’s safety director arrived on the scene she observed that the employee was holding a baseball bat, but that no else had a weapon. The safety director asked the employee to put the bat away. The employee did not comply, but proceeded to tell the safety director about his grievances with the co-worker. The safety director told the employee to get in his vehicle and leave. However, the employee did not do so until a manager came out and told the employee that he was going to call the police. The employer’s handbook provides that violence will not be tolerated, and that anyone involved in a fight will be discharged. The employee was discharged for his role in the altercation.

The commission reversed an ATD allowing benefits and found the employee’s actions to be misconduct. The employee appealed. The employee failed to file a brief, and the commission therefore filed a motion to dismiss. The employee later informed the court that he was unaware of the briefing schedule, and a new briefing schedule was established. The employee then filed his brief two days late, and the commission renewed its motion to dismiss.

Held: The court rejected the motion to dismiss, noting that dismissal is a drastic remedy which is only appropriate where the noncomplying party’s conduct is egregious or in bad faith and without a clear and justifiable excuse. The employee’s conduct in filing a late brief did not meet that standard.

Applying great weight deference to the commission’s decision on the merits, the court upheld the finding of misconduct. The court rejected the employee’s argument that he was acting in self-defense, noting that he was an active participant in the altercation, took actions to escalate it, and did not immediately stop when the opportunity arose. The court also noted the participation of the employee’s wife and family members. The court held that the commission correctly concluded the employee committed misconduct.

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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