Wis.LIRC UC Decision: Silva - February 1, 2001 - MC 630.09- Dishonesty - Falsification of record - employee wrote incorrect code for source of a sale which came from another source, to show that it was his - employee stood to gain $25, and possible bonus amounts, as a result of writing up the sale as his own

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ALLAN H SILVA, Employee

HINCKLEY SPRINGS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00607707MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately two years, most recently as a team leader for the employer, a company that sells bottled water. The employee's last day of work was August 7, 2000 (week 33), when he was discharged.

On August 4, 2000, an order came in over the fax machine to the Route Sales Department to service a new customer with bottled water. Although it was not clear what the source of the customer was, the parties both agreed that it was likely to have come from the telemarketing department in Chicago. The employee contacted the customer and set up an order for her. He also delivered the water to her. When he was leaving the customer's location, a route salesman for the employer showed up to deliver water. The parties speculated that route salesman may have gotten the information about the customer off of the computer. Apparently, the route salesman made mention of the incident to his supervisor, who then complained that the employee had "taken" a sale away from their department. The employee was discharged as a result of writing the sales order as a "code 10" denoting that he had made the sale to the customer, as opposed to a "code 1" meaning that the sale had come through other channels (such as the telemarketing department). The employee stood to gain $25, and possible bonus amounts, as a result of writing up the sale as one of his own.

The employer's regional sales manager confronted the employee about his actions. The employee admitted taking the fax and coding it so that he would receive credit for the sale. The regional sales manager asked whether the employee understood that his actions constituted falsification of documentation and that he could be terminated. The employee stated that he did. The regional sales manger asked the employee why he did it and the employee replied that he believed it was owed to him because of possible past new customers that should have gone his way that went to the Route Sales Department. The employer discharged the employee for falsification of a company document.

The issue to be decided is whether the employee was discharged for misconduct connected with his work. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The commission finds that the employee was discharged for misconduct connected with his work. The employee knew his actions were contrary to the employer's policies. The employee falsified documentation to reflect that he had made the sale to the customer. The contention that other workers also engaged in such conduct did not excuse the employee's behavior.

The commission therefore finds that in week 33 of 2000 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. � 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $904.00 for weeks 33 through 36 of 2000, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. � 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute � 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. � 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. � 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. � 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. � 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. � 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 33 of 2000, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $904.00 to the Unemployment Reserve Fund. The initial benefit computation form (UCB-700), issued on January August 8, 2000 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 1, 2001
silvaal.urr : 132 : 1 : MC 630.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did speak with the administrative law judge regarding witness credibility and demeanor. The administrative law judge believed the employee's testimony that the Milwaukee office was basically run on a race to the finish basis. However, the employee admitted that he knew his actions were contrary to the employer's policies. The commission credits the regional manager's testimony that the employee admitted his actions constituted falsification and could lead to his discharge.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc:
TINA THOMURE
DECISION ANALYST
C/O THE FRICK COMPANY

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uploaded 2001/02/05