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

SYNELL D SIMMONS, Employee

JEWEL FOOD STORES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608998MW


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 for about five months as a cashier for the employer. Her last day of work was August 31, 2001 (week 35).

On her last day of work, the employee was involved in a disagreement with a customer at her cash register. A supervisor became involved and instructed her to "let it go." As the supervisor walked away with the customer, she made a statement in reference to customers, which contained a vulgarity. As a result, she was suspended pending investigation and discharged on September 24, 2001 (week 39).

The first issue presented is whether the employee' suspension was for good cause connected with her employment.

Wis. Stat. § 108.04(6), the disciplinary suspension provision, provides for up to a three week suspension of benefits in cases in which an employee's employment is suspended for good cause connected with the employee's work. The prior statute referred to "misconduct or other good cause" as the standard for judging whether the claimant was disqualified from benefits.

The commission has consistently held that "good cause" for a disciplinary suspension does not require the level of culpability necessary for a finding of misconduct under Wis. Stat. § 108.04(5), and that it includes single isolated acts of poor judgment of the type that might not necessarily amount to misconduct. Nonetheless, some evidence of culpability must be presented to warrant a conclusion that a disciplinary suspension is for good cause. Voeltner v. Consolidated Freightways Corp. of Delaware, Hearing No. 91-400173 AP (LIRC 5-5- 92), The commission does not consider a suspension for investigation to constitute a disciplinary suspension. Brown v. Jewel Food Store, Hearing No. 98-605057MW (LIRC 10- 20-98).

The employer indicated that it suspended the employee pending an investigation, and not as a disciplinary action. Although the employer later discharged the employee as a result of its investigation, this does not alter the fact that the suspension itself was issued solely for investigatory purposes. Therefore the commission concludes that the employee was not suspended with good cause.

The next issue is whether the employee was discharged for misconduct connected with her employment.

The employee contended that the customer was not reasonable and that she made her remark at a low volume, so that just a co-worker could hear her. However, she was loud enough for the supervisor to hear and she should have known that potentially the customer in question and other customers could hear her as well. Moreover, the customer's actions or statements were not so provocative as to justify the statement. She had been previously cautioned on a recent occasion about appropriate behavior when in the presence of customers and had been instructed on how to deal with conflicts.

Under the circumstances, the employee's actions evinced a wilful, intentional and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect of her.

The commission therefore finds that in weeks 35 through 38 of 2001, the employee's employment was not suspended for good cause connected with her work within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that in week 39 of 2001, the employee was discharged for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,416.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and/or was caused partially or wholly by the employee, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits in weeks 35 through 38 of 2001. The employee is ineligible for benefits beginning in week 39 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. She is required to repay $2,416 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 27, 2002
simmosy . urr : 178 : 1  MC 676   MC 610.25 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission does not reverse the suspension finding based on any differing assessment of witness credibility but as a matter of law.

In her petition for commission review, the employee states that she was not given a chance to explain what happened and was prejudiced by the employer's documents at the hearing. The commission reviewed the record and it is clear that the employee had a full opportunity to explain her side of the story. Moreover, no finding in the decision was based solely on the hearsay statements of other workers. The employee's supervisor was an eyewitness to the incident which ended the employee's employment. The ALJ credited his account and the commission accepts the ALJ's findings that the employee made the remark about the customer and was overheard. The commission therefore affirms that the employee was discharged for misconduct.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Continental Consultants


Appealed to Circuit Court. Affirmed January 24, 2003.

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uploaded 2002/04/03