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

Subject: David W. Johnson (Hearing No. 94606442MW) v. LIRC and Reinz Wisconsin Gasket Company, Case 95-CV-001354 (Wis. Cir. Ct., Milwaukee Co., October 31, 1995)

Digest Codes:  MC 663

The employe had worked for eight years as a machine operator for the employer. In April 1993, June 1993, and June 1994, he caused substantial loss to the employer by failing to follow proper procedures when operating his machine. On July 28, 1994, the employe failed to read a work order, and as a result caused a $3,000 loss in product improperly run through his machine. The employe had previously received a written warning that further carelessness would result in his termination. A disputed issue of fact was the employer’s testimony that in a discussion after the final incident, the employe told the employer his days were valuable to him, and since he worked the third shift he was not going to get the necessary sleep. The employer discharged him.

The appeal tribunal found that the July 28, 1994 error was due to lack of sleep and unintentional. The commission reversed, find that the employe had a duty to report to work in a rested condition, and his failure to do so after receiving prior warnings for negligence, amounted to misconduct.

Held: The circuit court reversed the commission and found no misconduct. The court held there was no credible evidence to support the commission’s finding that the employe intentionally reported to work in a sleep-deprived condition. The commission’s conclusion that he had was pure speculation. The employe credibly testified that he had not been sleeping well due to his long stretch of consecutive work days and a change in shift.

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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