GAIL M MULZER, Employee

CAINE & ASSOCIATES, 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, the commission makes the following:

The employee worked for about seven months as an accountant for the employer, an accounting firm. Her last day of work was July 11, 2001 (week 28).

During the employee's employment with the employer the employer experienced cash flow problems. The employer's problems increased after an attorney garnisheed its checkbook.

In March of 2001 one of the employee's paychecks bounced. A paycheck dated April 17, 2001, in the amount of $580.02 bounced. The employer wrote the employee a check in the amount of $600.00. The additional amount was to cover the non-sufficient fund fees charged to the employee by her bank. That check bounced. The bank again put through the $580.02 paycheck and it cleared. The employee returned the $600.00 check to the employer. The bank would not cash her payroll check for July in the amount of $153.94. The employer wrote the employee a check for $11.00 to cover non-sufficient fund fees charged by the employee's bank. The bank would not cash the $11.00 check written to cover the non-sufficient fund fees. The employee had endorsed the checks and the employer indicated that it would pay the employee cash for the checks. When the employer did not do so the employee retrieved the two checks from the employer's desk.

On July 11 the employer raised the fact that the employee had taken the checks out of its desk. The employer asked the employee whether she trusted the employer. The employee indicated she did not trust the employer because her checks were bouncing. The employer then told the employee that it would be better if she worked elsewhere.

The commission finds that the employer discharged the employee on July 11, 2001. The employer's contention that the employee voluntarily terminated her employment is rejected. The commission finds that the employee presented the more credible testimony. The employer's documentation supports her testimony that numerous paychecks were bouncing. The reason the employee and the employer met on July 11, 2001, was because of the issue with the employee's paychecks. The commission finds it more credible that that same issue, the employer's inability to pay the employee the amounts due her for services performed, led to the separation here.

The commission therefore finds that in week 28 of 2001, the employer discharged the employee but not for misconduct connected with her work 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 beginning in week 28 of 2001, if she is otherwise qualified.

Dated and mailed February 26, 2002
mulzega . urr : 132 : 8  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ indicated that the employer appeared matter of fact in setting out the circumstances surrounding the employee's discharge. The ALJ believed that the employee came across as presenting a need to prevail in her claim. However, the ALJ did not express any adverse credibility impressions of the employee. The commission believes that given the fact that the employer had a history of failing to insure that payroll checks cleared the bank, and the fact that the payroll checks were the reason for the employee's meeting with the employer, it was more credible that the bounced checks led to the separation here. The commission does not believe that the employee's statement that she did not trust the employer rose to the level of misconduct particularly given the history preceding the meeting with the employer on July 11.

NOTE: The commission notes that based on the serious allegations made by the employee about the ALJ's conduct at the hearing the commission did listen to the hearing tape. The ALJ's conducted the hearing in a decorous and professional manner. The ALJ did interrupt the employee a number of times because she was either repeating testimony previously given or was being non-responsive to questions asked by the employer. The employee was not prevented from presenting relevant evidence. Indeed, at the end of her testimony the employee indicated she believed the matter had been covered.

cc: Gail M. Mulzer

Appealed to Circuit Court. Affirmed October 30, 2002.

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