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

Subject:  Wiersma Trucking, Inc. v. Martin B. Cvikel, Sr. and LIRC;  Case No. 00CV486 (Wis. Cir. Ct., Waukesha Co., October 13, 2000)

Digest Codes: MC 662  MC 663  MC 665.04  MC 688.1  MC 699.05

Employee, a truck driver, had a number of property-damage accidents with his employer's vehicles and was eventually fired when the employer's insurance carrier told the employer, after another accident involving the employee had been reported to it, that it could no longer provide coverage for the employee as a driver. LID, ATD and LIRC all found no misconduct, reasoning that the evidence showed a less-than-model employee whose performance was not at a satisfactory level but who did not wilfully or substantially disregard the employer's interests or engage in negligence so gross as to demonstrate equal culpability. The ATD, affirmed by LIRC, held that the employee was not adequately warned, noting that while the employer had asked the employee to try to drive more carefully it had never warned him that his job was in jeopardy. Employer appealed, arguing that the employee's repeated accidents amounted to misconduct.

Held:  Affirmed. The court agrees that the employee was not adequately warned because he was not specifically told that his job was in jeopardy. He was never given any written warnings of impending termination, nor did the employer do anything except to tell him to be more careful. The court also agreed that the employer’s complaints paint a picture of a less-than-model employee, but there was no evidence of wilfulness or wantonness in his actions. The court will not substitute its judgment for that of the ALJ who saw the employee testify, on the crucial question of the employee’s attitude.

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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