UI Court decision summary -- Josellis, Horst v. LIRC and Ho-Chunk Nation(Wis. Cir. Ct., Sauk Co., October 23, 2015) - PC 757, MC 602 – Discharge of janitor on "performance improvement plan" for going into hard-hat area w/o hard-hat, was for "substantial fault"; "Great weight" deference standard applies to LIRC application of "substantial fault" standard

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

Subject: Horst Josellis v. Labor and Industry Review Commission and Ho-Chunk Nation, Case 14-CV-567 (Wis. Cir. Ct., Sauk Co., October 23, 2015)

Digest Codes: PC 757 and MC 602

Digest Summary: The employee, who worked as a janitor for the employer, was discharged in June 2014 after he went into “hard hat-only” construction area on the employer's premises without a hard hat after being told by a supervisor he needed one. He had previously been given a “performance improvement plan in August 2013, had received “counseling” in February 2014 after being observed to fail to stop at a stop sign in the employer's parking lot, and had been suspended for three days in May 2014 for failing to place a “wet floor” sign while mopping a restroom. The commission found the discharge was for substantial fault under Wis. Stat. § 108.04(7g)

Held: Affirmed. Addressing the employee's argument that his testimony that was more credible than the supervisor's, the court noted that the commission is the judge of witness credibility. Addressing the argument that the employer should have presented video footage, the court noted that there was no requirement to present video footage for agency findings to be supported by substantial and credible evidence and that the employee did not develop the argument.

The court also concluded that great weight deference applied, noting the commission's long history in interpreting and applying the unemployment statutes generally, that the commission had issued at least 19 other decisions under the substantial fault statute since its enactment, and that the “great weight deference standard is the general rule in Wisconsin.” Finding the employee failed to meet his burden of demonstrating that the commission's legal conclusion was unreasonable, the court affirmed the commission's 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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