Hearing No. 88-402213AP

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.


The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed March 16, 1989.
110 - CD7159   MC 630.05    MC 665.08

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The employer-appellant in this case has argued that the employe was discharged for misconduct, specifically, failing to provide minutes of certain meetings, failing to coordinate alumni assocation activities such as the newsletter, and failing to develop certain marketing materials. The Administrative Law Judge found, and the Commission agrees, that while the employe's performance may well have been substandard, the employer has not met its burden to demonstrate that it was undertaken in an intentional or wilful disregard of the employer's interests. Furthermore, the Commission finds that the employe's inadequacies and failures did not rise to the level of carelessness or negligence that would, "manifest equal culpability, wrongful intent or evil design, or . . . show an intentional and substantial disregard of the employer's interests", Boynton Cab v. Neubeck and Industrial Commission, 237 Wis. 249 (1941).

The employer has alleged that, after the employe was terminated, it discovered that she had engaged in certain acts of misappropriation. The Commission has consistently held that, where actions of an employe which would constitute misconduct within the meaning of the Act are not known to the employer at the time that it discharges the employe, there has not been discharge "for" misconduct within the meaning of the Act since the misconduct was not the reason for the discharge. The employer-appellant appears to concede this point, but it argues that the evidence that the employe engaged in this misconduct should be viewed as establishing that her other failures as an employe were in fact an intentional and wilful interference with and disregard for the employer's interests. On the facts of this case, the Commission does not agree. The misappropriations which the employe is alleged to have committed are conduct of a different type from the failures and shortcomings in the performance of her assigned duties for which she was terminated, and the Commission for that reason does not view the misappropriation allegations as changing the nature of the employe's shortcomings as an employe which led to her termination.

The employer has also argued that, although the misappropriation allegations may not be used to disqualify the employe from benefits up to the point at which they were discovered, they should justify terminating her benefits as of that point since, the employer argues, had she been an employe at that point she would have been terminated. The employer argues that such a result is justified on equitable grounds, and asserts that the provisions of section 108.04 (1)(i), Stats., which establish that an employe may be denied benefits for failing to provide the Department necessary information with a benefited entitlement to arise later, only if the employe provides the information, is analogous. However, the Commission does not find this analogy to be apt. There is nothing in the statutes which would authorize the termination of benefits to an employe, otherwise eligible, simply because their former employer has discovered some type of misconduct or misfeasance which the employe was guilty of while they were employed by the employer.

NOTE: In her brief to the Commission, the employe made reference to facts outside of the record and attached a number of documents which were not received into the record as evidence. The Commission is required to conduct its review based on the record made at hearing. For this reason, the Commission has not considered any of the materials external to the record which the employe inserted in her brief.

Jeffrey F. Snyder, Attorney
Remley, Sensenbrenner Law Offices
Cummings, Snyder, Hanes & Wiegratz, S.C.

Appealed to Circuit Court.  Affirmed December 19, 1989. [Circuit Court decision summary]

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