JOHN A FOJUT, Employee

BANK ONE WISCONSIN, Employer

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, and after consultation with the ALJ, the commission makes the following:

The employee worked for three years as a customer service representative for a bank. He was discharged on June 4, 2001(week 23) as a result of two deposit errors on customers' accounts.

The employee's regular duties included setting up new customer accounts. The accounts were created using preassembled kits which contained the necessary paper work for setting up the new account. On April 9, 2001, the employee set up a new account for a customer but used a pre-printed deposit slip containing the number for a different, and as yet unopened, account to deposit the substantial initial deposit. The unopened account was credited with the customer's initial deposit and the customer's account was left empty. A customer brought the error to the bank's attention on May 18. On April 11, the employee committed a similar error in setting up a new account but depositing the initial funds in a different account. That error was discovered on May 2. The employer did an investigation and discharged the employee. The employee agreed that these were his accounts but he could not explain how he committed the error. The employee gained nothing from this conduct. The employer has not alleged that it was intentional.

The issue is whether these two errors constitute misconduct. The commission concludes that they do not.

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' with in the meaning of the statute."

These acts constituted two isolated errors in an otherwise acceptable employment history and as stated above isolated instances of ordinary negligence do not amount to misconduct. The bank did not impose any special duty to double check the account numbers in such transactions beyond the general requirement of accuracy in transactions regarded by the employer as highly important to the job. The employee made simple errors which he then failed to catch prior to completing the transactions. This does not rise to the level of misconduct.

The commission therefore finds no misconduct based on the small number of instances, the employee's otherwise good work, and the apparently unusual circumstances of two different new account packets becoming confused. Such ordinary negligence will not result in a finding of misconduct.

The commission therefore finds that in week 23 of 2001, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5)

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits if otherwise qualified.

Dated and mailed December 14, 2001
fojutjo . urr : 178 : 1 MC 660.01  MC 691  MC 675

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission consulted with the ALJ regarding credibility prior to reversing. From his comments, the commission concludes that the credibility of the testimony did not play a significant role in his decision. Therefore the commission has accepted the ALJ's factual findings but reaches a different legal conclusion regarding the degree of culpability to be attributed to the employee's admitted conduct.

cc: 
Attorney John D. Uelmen
Bank One Wisconsin (Waukesha, Wisconsin)
James B. Schmidt

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uploaded 2002/01/02