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  • WisBar News
    February 03, 2017

    Appeals Court Reverses, Fired Worker Will Get Unemployment Benefits

    Joe Forward

    Unemployment Benefits

    Feb. 3, 2017 – A bus driver fired for failing to secure a passenger’s wheelchair, in violation of a company policy, recently won her appeal for unemployment benefits.

    The Department of Workforce Development (DWD) determined that Paulina Easterling was substantially at fault for the circumstances that led to her termination from Badger Bus Lines Inc. in 2014. A company policy required employed drivers to take proper steps to secure passengers using wheelchairs, a “wheelchair tipping policy.”

    The policy that Easterling signed noted that tipping incidents would be investigated and a driver would be terminated from the job if the driver failed to fully secure a wheelchair.

    One day, Easterling was transporting a group of elderly passengers, one who used a wheelchair. Easterling did not properly secure the wheelchair and it tipped in transit. Badger Bus Lines terminated Easterling’s employment under the policy.

    An administrative law judge affirmed the DWD’s decision to deny unemployment benefits, but on the basis that Easterling engaged in misconduct. Easterling appealed to the Labor Industry Review Commission (LIRC). LIRC, like the DWD, ruled that Easterling was not entitled to benefits because the firing was substantially her fault.

    A circuit court affirmed LIRC’s decision. But in Easterling v. LIRC, 2016AP190 (Feb. 2, 2017), a three-judge panel for the District IV Appeals Court reversed, concluding that LIRC erred in concluding that Easterling could not receive benefits for substantial fault.

    “We agree with Easterling, based on our conclusion that there is not credible and substantial evidence in the record on which reasonable persons could rely to make a decision that the alleged conduct by Easterling was intentional, and not an ‘inadvertent error made by the employee,’” wrote Judge Gary Sherman for the three-judge panel.

    The appeals court panel noted that a new “substantial fault” provision was enacted in 2013. Under Wis. Stat. section 108.04(5g)(a), benefits can be denied to those terminated for “substantial fault,” but that does not include “inadvertent errors.”

    “We conclude that, based on the evidence in the record, Easterling’s employment was not terminated for substantial fault because her failure to secure the wheelchair to the van was an inadvertent error,” Judge Sherman wrote.

    The panel noted findings of fact: she properly positioned the wheelchair and applied the brakes but forgot to secure the floor mounting straps to the wheelchair. Easterling had “mistakenly failed” to secure the passenger’s wheelchair, LIRC concluded.

    In addition, Easterling did not have the benefit of an experienced volunteer who was normally there to assist, had three extra passengers she did not expect, and felt pressure to hurry since the van was parked at a crosswalk and passengers were ready.

    “The fact that she ensured that the wheelchair was properly positioned and the brakes were applied certainly provides a context in which she could have decided not to secure the wheelchair,” Judge Sherman wrote. “But they add only a weak inference at best that she did make that decision, an inference that is contradicted by all other evidence.”

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