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

JOHNISHA L MOORE, Employee

TCF BANK, Employer
c/o UC EXPRESS

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609892MW


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:

The face sheet of the appeal tribunal decision is modified to reflect that the employer did not appear for the hearing and that the employee appeared in person and by Gene Holt, Agent.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2002, if otherwise qualified.

Dated and mailed March 31, 2003
moorejo . umd : 115 : 1  MC 660.01  PC 712.5  PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked as an assistant manager for the employer, a bank.

The employer did not appear at the hearing. In its petition for commission review, the employer contended that the bank manager at the time of the subject discharge was no longer in its employ, so the regional manager was the only individual with first hand knowledge of the events at issue; that, since the regional manager was scheduled to be out of town on vacation from January 17-27, 2003, the employer had requested a postponement of the January 17 hearing date; and that, since this request had been denied, the employer was unable to present its case and therefore a new hearing should be held. However, the file indicates that, despite the fact that, in the initial determination mailed October 23, 2002, and in the confirmation of timely appeal form mailed November 7, 2002, the parties were instructed to immediately advise the hearing office of dates their witnesses may not be available for hearing, the employer did not provide such notification until it requested a postponement in a letter dated and fax'd to the department January 14, 2003, three days before the January 17 hearing date. The employer has offered no explanation for waiting until so late in the process to advise the department of its witness's scheduling conflict. The commission agrees with the department's decision to deny the request for postponement.

Since the record establishes that the employee's failure here was not intentional, the question was one of determining whether her actions evinced wanton disregard of the employer's interests, i.e., carelessness or negligence of such degree as to manifest equal culpability, wrongful intent or evil design, or whether instead her actions were inadvertencies, isolated instances of ordinary negligence, or good faith errors in judgment or discretion. Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)

In Nilsson v. TCF Bank, UI Hearing No. 01608674MW (LIRC March 12, 2002), the branch manager violated employer policy by failing to balance the vault but signing off on the vault-balancing form, and by failing to follow the employer's dual control policy when balancing deposits from the automatic teller machine, and the commission concluded that misconduct had been established. In McKeown v. Bank One Wisconsin, UI Hearing No. 02004575JV (LIRC Feb. 14, 2003), the commission concluded that misconduct had not been established in regard to a teller who had received a letter of discipline for mistakenly giving a customer $1700 more than he should have received when she did not verify the denominations of certain bonds, and when she later mistakenly credited $40.40 to a customer when she had already given him this amount of cash back for the transaction. In Kashevarof v. Milwaukee Brewing Co., UI Hearing No. 01609424MW (LIRC Feb. 28, 2002), the commission found misconduct where the employee, despite being reminded due to two recent burglaries, of the employer's policy for securing its cash drawers at closing, failed to secure a full cash drawer the night after the second burglary.

Although the consequence of the employee's error here was significant, this situation, where no violation of an employer policy or a recent employer directive has been established, appears to be more akin to that in McKeown, supra. In addition, there were mitigating circumstances, i.e., the employee was required to perform double duty on the day in question and forgot to move the $2700 because she was trying to do many things at the same time. The commission concludes that the employee was negligent but that her negligence did not rise to the level of misconduct.

cc: 
Gene Holt
TCF Bank (Glendale, Wisconsin)


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