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

SHAWN M HARRISON, Employee

FRESH BRANDS DISTRIBUTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02602529RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A 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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 9 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed December 6, 2002
harrish . usd : 105 : 1  PC 731   PC 740 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee argues that she was wrongly accused of theft, that the criminal charges against her were dismissed. The employee includes with her petition a Judgement of Dismissal from the Racine County Circuit Court. This judgment itself, however, does not negate the finding of misconduct in the case. It establishes only that, for whatever reason, the Racine County District Attorney decided not to pursue the charges against the employee. At hearing, the employer presented credible firsthand evidence regarding the employee's thefts and her admission of those thefts. This is sufficient to sustain the finding of misconduct, regardless of the outcome of subsequent criminal proceedings.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.


NOTE: The commission determined to accept the employee's petition as having been late for a reason beyond her control. The reason specifically was the Judgement of Dismissal from the circuit court, a document which did not come into existence until a few months after the appeal deadline in the case. This situation is analogous to one where an employer submits late a criminal conviction following a discharge from employment because of theft or criminal violation. In those cases, the criminal convictions constitute a reason beyond control for the late appeal, assuming they were not in existence as of the appeal deadline. The same reasoning applies when the judgment is of acquittal or dismissal but, as indicated above, such judgments do not automatically establish innocence in the unemployment insurance context (where the standard of proof is lower than it is in the criminal context).

cc: Piggly Wiggly


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uploaded 2002/12/13