ROBBIN V KASHEVAROF, Employee

MILWAUKEE BREWING CO, 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 the employer, a brew pub, for two and a half years as a restaurant manager. His last day of work was September 14, 2001 (week 37).

On September 4, 2001, the employer's establishment was burglarized. The following day the employer had a meeting with staff at which new closing procedures were discussed. On the night of September 13 the employer was burglarized again. When the second burglary occurred the employer discovered that the employee had failed to follow one of its new procedures requiring him to bring the cash drawer from the bar to the employer's office upstairs. When questioned about this, the employee explained that the general manager's brother, who was the owner of the building, had instructed him to leave the cash drawers in place. The employer acknowledged that there had been a misunderstanding, but stated that from that point on the drawers were to be taken upstairs. The employee agreed to do so.

Upon leaving the restaurant the following night, September 14, the general manager reminded the employee about bringing the cash drawers upstairs. The employee stated that he would take care of it. The employee took the five bar cash drawers upstairs to the office, but neglected to bring the cash drawer from the hostess stand. At 5:30 a.m. on September 15 members of the Milwaukee Police Department came to the restaurant to make sure everything was secure. The police officers notified the employer that they found the back door unlocked and that, upon entering the premises, they found an open cash drawer full of money. (1)   The following day the employee was discharged for failing to secure the back door and for failing to bring the cash drawer upstairs.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his 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 employer discharged the employee for failing to follow security procedures on his last night of work in that he failed to secure the back door and failed to bring one of the cash drawers up to the office. The evidence does not demonstrate that the employee failed to secure the back door. The employee testified without rebuttal that he asked the employer's two security guards to check the door at 2:30 a.m., that he watched them do it, and that he then checked the door himself after they were done. However, the employee is responsible for failing to bring one of the cash drawers to the employer's office, and the commission does not find the employee's explanation for this omission compelling. The employee contended that he was attempting to comply with the employer's directives but was new to the procedures and overlooked the cash drawer in question. However, the employee was on notice that security measures were important to the employer, which had been burglarized on two recent occasions, and had been specifically reminded of the need to bring the cash drawers upstairs to the office. Given all the circumstances, the commission believes that the employee's failure to bring the cash drawer to the office went beyond mere negligence and rose to the level of misconduct, within the meaning of the law.

The commission, therefore, finds that in week 37 of 2001, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 39 through 41 of 2001 in the total amount of $939, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2001 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $939 to the Unemployment Reserve Fund.

Dated and mailed February 28, 2002
kashero . urr : 164 : 1  MC 660.01 MC 691

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he found the employee to be generally credible, and believed his testimony that he attempted to follow the employer's security procedures, but forgot the cash drawer. The commission does not disagree with this credibility assessment, but finds that the employee's error was so serious as to amount to gross negligence.

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(1)( Back ) There is no allegation that the employee left the drawer open. The employer explained that cash drawers automatically open up if there is a power outage.

uploaded 2002/03/04