PAMELA S JONES, Employee

JEWEL FOOD STORE, Employer

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

The employee worked for the employer, a supermarket, for about three months as a deli clerk. Her last day of work was December 2, 1999 (week 49).

The employee was not scheduled to work on November 30, 1999, but came in to help out because the employer was shorthanded. Shortly after she arrived at work the employer's security manager noticed that the employee appeared to be intoxicated. The security manager notified the assistant manager, and the two confronted the employee. The employee's speech was slurred and, when asked whether she had been drinking, she acknowledged she had had a few beers. The employee was told to punch out and was given permission to sit in the break room. On the way to the breakroom the employee was stumbling and nearly fell down the stairs.

About ten minutes later the security manager noticed that the employee was back at the deli counter. The employee was told she had to leave the store. As the employee was being escorted out of the store by the security manager and assistant manager, they observed that the employee was carrying a large cup. The employee stated that the cup contained beer and explained that she brought it into the store with her when she came in. The managers then noticed a lump in the employee's jacket and asked her to remove the jacket. The employee did so, and the managers found two deli packages of ham. The employee stated that she did not know how they got there. The employee was advised that she was under suspension pending a meeting with the store manager.

On December 2, 1999, the employee came to work and was interviewed about the November 30 incident. The employee prepared a written statement in which she acknowledged that she had been caught with some cold cuts in her pocket, but stated she did not remember putting them there because she was intoxicated at the time. The employer sent the employee home and told her she would be notified by telephone of the outcome of the interview. The matter was turned over to the employer's corporate office.

On or about December 7, 1999, a representative of the corporate office contacted the store security manager and told him that the employee was discharged. The employer's store manager communicated this decision to the employee. On or about December 11 the store manager notified the personnel coordinator that the employee was discharged based upon the November 30 incident and directed her to prepare termination papers.

An initial issue presented in this case is whether there is sufficient evidence to warrant a conclusion that the employee was discharged. The appeal tribunal found that the employer failed to present any nonhearsay to show that the employee was discharged, and resolved the entire matter on that basis without reaching the question of misconduct. The employer failed to bring to the hearing the person who actually told the employee she was discharged, nor did it introduce a copy of the termination document. While it would have been preferable for the employer to introduce firsthand evidence demonstrating that a discharge occurred, the commission is satisfied that the record contains sufficient evidence to warrant a conclusion that the employee was discharged based on the November 30 incident. The record indicates that on December 2, 1999, the employee was suspended pending action by the corporate office. Department records indicate that the employee initiated a claim for benefits on December 7, 1999, stating that her last day of work was November 30, 1999, and that she had been discharged. At the hearing the personnel coordinator testified that termination papers were prepared, and more than one witness offered hearsay testimony that the employee was notified by telephone of her discharge. Although such hearsay evidence cannot be the sole basis for the resolution of any issue in the case, it is admissible and, when taken together with other nonhearsay evidence in the record, allows a reasonable inference that the employee was discharged.

The next question to decide is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 employee reported to work intoxicated, brought an open container of beer to the job, and, upon being sent home, attempted to steal two packets of ham from the employer. The employee's actions amounted to misconduct as a matter of law.

The commission, therefore, finds that in week 49 of 1999, the employe was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 49 of 1999 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. Because no benefits have been paid, there is no overpayment as a result of this decision.

Dated and mailed May 22, 2001
jonespa . urr : 164 : 1   PC 714.07   MC 630.14   MC 651.6 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon an assessment of witness credibility. The employee did not appear at the hearing, and the employer's version of events went unrebutted.

cc: Continental Consultants

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uploaded 2001/06/21