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

TRAMAINE M JACKSON, Employee

WELLS FARGO BANK WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608921MW


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 approximately four months, as a bank teller for the employer, a banking corporation. The employee's last day of work was July 11, 2001. The employee was discharged on July 12, 2001 (week 28). The employee was discharged for failing to cooperate during an investigation regarding a $8,100.00 shortage from her cash drawer.

On Saturday July 7, 2001, at the end of her shift, the employee conducted her usual end-of-day audit in which she recorded an $800.00 overage. The employee was next scheduled to work on July 9, 2001, but was absent due to her sick child. The employee's next scheduled day of work was Wednesday, July 11, 2001. The employee conducted her usual beginning-day audit of her drawer at which time she recorded a shortage of over $8,000.00. The employee could not explain the difference in cash amounts between the July 7 end-of-day audit and the July 11 beginning-day audit and was suspended.

On July 12, 2001, the employee was called to an investigatory meeting. Present at the meeting was the senior human resource consultant, the employer's investigator, and the employee. Before the investigatory meeting began, the employee was given a document stating that she would cooperate in the investigation and that failure to provide truthful, complete and accurate information would result in disciplinary action, up to and including termination. The employee acknowledged this warning by signing the document. The employer's rules also prohibit third party representation during the investigatory meeting. The employer's rules however do provide for dispute resolution. During the course of the meeting, the employee refused to answer the employer's questions and the meeting ended after the employee's request for third party representation was denied per the employer's rules.

The issue for review is whether the employee's conduct during the investigatory meeting constitutes misconduct within the meaning of the law. 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."

The commission concludes that the employee failed to cooperate during the investigation and when her request for third party representation was denied she unreasonably discontinued answering questions from the employer. Furthermore, the employee failed to elect use of the employer's dispute resolution process made available to her during the investigatory meeting. The employer had a right to expect the employee to cooperate and provide truthful, complete and accurate information during the investigatory meeting. The employee's failure to cooperate constitutes an intentional disregard of the employer's interests and of the standard conduct the employer had a right to expect of the employee.

The commission therefore finds that the employee was discharged for misconduct in week 28 of 2001, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $588.00 for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee 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), be cause although the over payment 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 28 of 2001, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $588.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 13, 2002
jackstr . urr : 135 : 8 MC 630.05  MC 691  MC 640.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission conferred with the ALJ as to his credibility impressions and assessment of those who testified. The commission credits the testimony of the employer's witness over that of the employee's testimony. The commission is satisfied that the employee failed to fully cooperate during the investigation by providing truthful, complete and accurate answers during the investigation, despite acknowledging her willingness to do so in writing prior to the investigation. Additionally, the employee chose not to use the dispute resolution offered to her during the investigatory meeting.

cc: 
Wells Fargo Bank N A - Los Angeles, CA 90017
The Frick Company


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