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

DANIEL L DEEG JR, Employee

FAZOLIS RESTAURANTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402108AP


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, except that it makes the following modifications:

Under FINDINGS OF FACT AND CONCLUSIONS OF LAW, substitute paragraph ten with the following:

"It is an employer's burden to establish misconduct and when allegations of theft or misappropriation of money are made, the evidence must be clear, convincing and satisfactory to support the employer's burden of proof. The employer failed to meet its burden in this case. Neither party could satisfactorily establish that the employee was the only one who had access to the cash register drawer that he was covering while someone was on break. Additionally, the employee's own drawer that he had during his shift did not reveal a shortage. Consequently, the commission is unwilling to conclude that the evidence establishes misconduct."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2001, if otherwise qualified.

Dated and mailed November 27, 2002
deegdan . umd : 135 : 1   MC 630.14  PC 714.03 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission conferred with the administrative law judge as to her credibility impressions and assessment of those who testified. The commission specifically asked the administrative law judge whether she found the employee's testimony regarding the cash shortage to be credible. The administrative law judge found the employee's testimony credible. The administrative law judge indicated that the employee simply did not know how the cash shortage happened and did not offer any "half baked story" to justify the cash shortage. Additionally, neither party could answer the administrative law judge's question as to whether the employee only had access to the cash drawer. For these reasons, the commission is satisfied that the employer failed to meet it burden of proof and as modified affirms the appeal tribunal decision.

cc: Fazoli's Restaurant (Green Bay, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/12/13