STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
ELLEN C CORNILS, Employee
ULTRA MART FOODS INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402775AP
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.
DECISION
The decision of the administrative law judge is affirmed. Accordingly, the
employee is eligible for benefits beginning in week 25 of 2002, if otherwise
qualified.
Dated and mailed March 11, 2003
corniel . usd : 115 : aty MC 697
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
James T. Flynn, Commissioner
MEMORANDUM OPINION
Although the commission understands the importance to the employment
relationship of trust and honesty in the time-keeping and time-recording process,
it concludes that the employer failed to establish misconduct here. The employer
did not successfully rebut the employee's testimony that the store was going under
(in fact, the store closed a week and a half after the employee was terminated), that
the department managers had been told that avoiding overtime and other cost-
cutting efforts could save the store, and that enforcement of store policies had
been lax. The employer, which has the burden of proof, did not establish that the
employee had not actually worked the previous hours she was making up in the
succeeding week. Moreover, the employee had worked for this store for almost 20
years and the record does not show that she had any prior discipline or
performance problems, or that she had received a warning for this type of conduct.
In addition, the commission finds credible, as did the ALJ, the employee's
representation "that she was attempting to take time off that she thought she was
owed by the employer when she previously worked 'off the clock' "; and her
representation that she "feared the store would close due to financial problems
and she did not want to add the additional cost of overtime to the employer."
Finally, the commission, in Ostrowski v. Royalton Manor, Case No. 012012013EC
(LIRC December 21, 2001), addressed a somewhat similar question and concluded
that misconduct by time theft had not been demonstrated in a case where a long-
term employee had arrived early for work, not clocked in for these early hours, and
had run a short personal errand later in the day without clocking out. The
commission stated as follows in relevant part in reaching that decision:
While the employer may have had valid concerns that the employee
was stealing time, in this instance the employee could legitimately
have believed that she was not stealing time because she had come in
early and worked without punching in to ensure that bread delivery
could be made. The employee's actions may have demonstrated poor
judgment, however, the commission does not, in view of her 23 years
of employment with the employer, and lack of prior warnings, find
that the employee's actions amounted to misconduct. While the
employer may have made a valid business decision when it decided to
discharge her, the employee's actions amounted to an isolated
instance of poor judgment and did not rise to the level of misconduct
connected with her work
The commission would apply the same rationale here in concluding that the
employer failed to prove that the employee engaged in misconduct.
cc:
Wray Vassar, Continental Consultants
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