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

TODD M RADTKE, Employee

REDKEY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608436WK


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed January 31, 2002
radtkto . usd : 178 : 1 MC 618  MC 665.12  MC 692.02

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee committed work related misconduct when he shoplifted items from a store on company time and stored them in a company car. The employer further argues that the employee acted in knowing disregard of employer policies relating to honesty which the employer asserts is essential to a business involving pharmaceutical sales. In support of these contentions, the employer offers numerous reports and policies which were not offered at the hearing and form no part of the record before the commission. The commission is limited to the record of the hearing in its decision making. Therefore it must disregard those submissions offered with the petition which were not also received into the record of the hearing.

The issue before the commission is whether the employee's admitted retail theft is work related misconduct. It is the employer's burden to prove the employee's conduct was connected to his employment. The employer failed to do so despite the fact that it was on notice from the department's initial determination that it had failed to establish that the employee's conduct was connected to his employment and that it harmed the employer's interests during the initial investigation. At that point, the employer's attorney was on notice that it needed to prove those points at hearing in order to prevail. Nevertheless, it brought no first hand witness to the employee's conduct nor did it offer any employer policies showing that it had a special business interest in the honesty of employees, even when engaged in off duty conduct. It never asserted at the hearing that the employee was discharged for dishonesty, only for misuse of a company car.

Since the employer did not offer proof of its allegations, the commission is left with the employee's account which does not support the employer's position. According to the only evidence in the record, the employee committed a single act of retail theft at a store unrelated to the employer's business while off duty. The only employment connection was that he drove to the store in the employer's unmarked car. According to the employee's testimony, he was stopped by store security before he was able to return to the car. The employee's testimony does not establish that his conduct was related to his work for the employer or that it harmed the employer's interests.

While the employer may have made a reasonable business decision to discharge an employee it had lost confidence in, that discharge was not shown to have been for work related misconduct. The commission therefore affirms the appeal tribunal decision.

cc: 
Red Key, Inc. (Dublin, Ohio)
Todd Radtke (Pewaukee, Wisconsin)
Wray Vassar
Attorney Shari Canter George


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uploaded 2002/02/04