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

MICHAEL R. WHITE, Employee

HOME DEPOT USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201276RH


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 about six months as a plumbing associate for the employer, a retail home improvement business. His last day of work was July 15, 2001 (week 29), when he voluntarily terminated his employment.

In early July of 2001 the employee came upon a worker who told the employee that he was stealing from the employer. The employee went to management and reported the potential theft on the condition that his role in reporting the matter be kept confidential. The employer agreed. On July 15 a worker told the employee to watch his back because the word was out that the employee was a nark. The employee quit because he believed the employer breached its vow of confidentiality and because he feared retaliation. No one in management knowledgeable of the employee's involvement had breached confidentiality. After the employee quit the employer interviewed a worker involved in the theft. The worker indicated that the employee knew of the thefts because the employee had come across the worker in the act.

The issue to be decided is whether the employee voluntarily terminated his employment with good cause attributable to the employer.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson, 94 Wis. 2d at 120 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler, 27 Wis. 2d at 401.)

All the individuals who were aware of the employee's role in the matter appeared at the hearing. The employer's store manager, department manager, assistant store manager, and loss prevention manager all credibly denied divulging the employee's name to anyone else. A breach of confidentiality by one of the members of management was not the only explanation for how the information became known to other workers. For example, the worker(s) involved in the thefts may have suspected the employee given that he came upon one of the workers in the act and the worker admitted to the employee that he was stealing. The employee did not meet his burden of establishing that the employer engaged in culpable behavior that constituted a real and substantial reason for terminating his employment.

The commission therefore finds that in week 29 of 2001 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $4,037.00 for weeks 29 through 47 of 2001, for which the employee was not eligible and to which the employee 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 employee. Under Wis. Stat. § 108.02(l0e)(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(l0e)(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 employee as provided in Wis. Stat. § 108.04(13)(1), 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 employee is ineligible for benefits beginning in week 29 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $4,037.00 to the Unemployment Reserve Fund.

Dated and mailed December 7, 2001
whitemi . urr : 132 : 1 : VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ indicated that there was nothing in the demeanor of the employer's witnesses that lead the ALJ to question their testimony. The ALJ indicated that the decision was not based on credibility but on the conclusion that there was no other logical explanation for workers accusing the employee of being a nark.

cc: 
Continental Consultants
Home Depot ()Rhinelander, Wisconsin)


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uploaded 2001/12/10