Robert G. PALOMBI, Plaintiff-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION and Janesville Public School, Defendants-Respondents.†
No. 86-1925
Court of Appeals of Wisconsin
Submitted on briefs May 6, 1987.—Decided June 25, 1987.
410 N.W.2d 654
†Petition to review denied.
For the defendants-respondents, the cause was submitted on the brief of Robert C. Reed, of Madison.
Before Dykman, Eich and Sundby, JJ.
EICH, J. Robert Palombi appeals from a judgment and an order affirming a decision of the Labor and Industry Review Commission which computed his eligibility for unemployment compensation benefits on the basis of twenty-nine weeks of employment. The issue is whether an employee, who is on paid suspension and under directions not to report to work, may nonetheless be considered as “perform[ing] ... wage-earning services for the employer” within the meaning of
The facts are not in dispute. Palombi, a teacher in the Janesville school system, was suspended from his position without pay after two students complained that he had sexually assaulted them. A school district rule then in effect limited the duration of unpaid
Once various conditions for eligibility are met, the amount of unemployment compensation available to a terminated employee is based on the number of his or her “weeks of employment.”
On appeal, we consider the commission‘s decision under the same rules that apply in circuit court. We are bound by the commission‘s findings of fact if they
Palombi argues that by obeying the directive not to report for work during his suspension, he was performing a wage-earning service for the district. His argument, based on one of several listed dictionary definitions of the word “service” as “an act done ... at the command of another,” is not persuasive. First, it is apparent that the definition he selected—one of twenty in the listing—reflects a different usage of the word, for the accompanying “example” reads: “impose some [service] on me for thy love—Shak.” Webster‘s Third New International Dictionary at 2075 (1976). Second, the inefficacy of dictionary definitions in resolving the issue is illustrated by the fact that Palombi was under suspension at the time; and Webster defines “suspension” as “forced withdrawal from the exercise of office, powers, prerogatives [or] privileges.” Id. at 2303.
More to the point, we believe, is the suggestion in Salerno v. John Oster Mfg. Co., 37 Wis. 2d 433, 155 N.W.2d 66 (1967), that we must limit ourselves to the definition of “weeks of employment” as contained in the statute itself. The Salerno court held that the statutory definition must be “literally adhered to”
We do not believe that an employee who is suspended from his job pending an investigation of criminal charges against him—even though his wages continue during the period of suspension—can be considered as performing a service for his employer in any sense of the term. Such a conclusion flies in the face of common sense and does violence to the statute. And the fact that Palombi abided by the terms of his suspension by not reporting for work does not persuade us otherwise.
Palombi argues, however, that we should be more expansive in our reading of
Finally, Palombi argues that we should interpret
By the Court.—Judgment and order affirmed.
SUNDBY, J. (dissenting).
Who best
Bear his mild yoke, they serve him best: his state
Is kingly; thousands at his bidding speed,
And post o‘er land and ocean without rest;
They also serve who only stand and wait.
Milton, On His Blindness (1652).
Palombi‘s “mild yoke” was the school district‘s suspension pending an investigation of charges that
When the charges were made against Palombi, the district suspended him without pay. However, the district‘s policy was to limit unpaid suspensions to thirty days. Therefore, he was paid for six weeks during which he was investigated and he awaited the results of the district‘s investigation and its decision as to his continued employment.
The sole issue is whether the weeks during which Palombi was suspended with pay should be counted as weeks of employment under
The examiner and the LIRC concluded that a week in which an employee receives wages but does not do work for the employer is not a “week of employment” within
An employe‘s “weeks of employment” by an employer means all those weeks in which the employe has performed any wage-earning services for the employer in employment subject to this chapter and, when requested by the employe, all those weeks for which the employe‘s vacation pay or dismissal or termination pay was allocable as wages for benefit purposes and for which benefits were not paid.
The case relied on by the Salerno court, Fredricks v. Industrial Comm., 4 Wis. 2d 519, 91 N.W.2d 93 (1958), involved a claim for unemployment compensation benefits by discharged employees following a protracted strike. During the period of the strike the employees withheld their services as a tool of economic suasion to coerce the employer to accept their wage demands. Under no view of their status could they have sustained a claim they continued to perform services for their employer. In contrast, Palombi did not withhold his services of his own volition. His employer directed him not to perform services except to cooperate in the ongoing investigation of the activities for which he was suspended.
Palombi was a public employee whose continued employment could have been detrimental to the public health, safety and general welfare. If Palombi was in fact guilty of molesting students, it was
Because I conclude that Palombi was performing wage-earning services for the district while he was suspended pending investigation and disposition of the charges against him, I dissent.