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

Subject: Linda M. Spear v. McGlynn Bakeries and LIRC, Case No. 00 CV 759 (Wis. Cir. Ct., Milwaukee Co., November 1, 2000)

Digest Codes:  MC 605.07   MC 630.07   MC 640.12

The employee worked as a cake decorator for the employer, a Milwaukee bakery. She was upset with her supervisor, Koebele, because one week prior to the scheduled date of a her carpal tunnel surgery on 8/18/99, he had rescinded the previously-granted permission for her to be off work six weeks for the surgery. Koebele needed the employee to work and considered the date of the surgery to be elective. The employee had also planned to take a trip with her boyfriend to Las Vegas while she was recuperating from the surgery. She had purchased a nonrefundable airline ticket and had been scheduled to leave on 8/28/99.

The employee did not cancel her reservations but went to her doctor and obtained a medical excuse indicating that her hand problems required her to be off work from 8/24/99 to 8/30/99. She elected to work through Friday, 8/27/99, and on that date Koebele told her he had telephoned her doctor, and the doctor had indicated she could tolerate light duty. Koebele told her they had light duty available for her the following week, but she told him she planned to attend a wedding in Rhinelander that weekend, and also stay in Rhinelander through the week. Koebele told her she could attend the wedding but had to be back to work on Monday, 8/20/99. The employee refused and Koebele told her that if she did not come to work on Monday she could be terminated.

The employee did not go to a wedding but went on her Las Vegas trip. She did not report to work, and when Koebele found out she was in Las Vegas he discharged her.

The appeal tribunal found misconduct and the commission affirmed. The employee sought court review, arguing that Koebele treated her unfairly, that she had lined up replacements to work for her while she was in Las Vegas, and that Koebele misled her physician as to her physical abilities.

Held:  The finding of misconduct is affirmed. The employee was dishonest with her employer, and the employer acted within its rights to require her to come to work. The commission's finding of misconduct is supported by the record and is reasonable.

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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