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

DEBRA R GLOVER, Employee

BANK ONE WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607878MW


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:

In the 6th paragraph of the ALJ's decision, delete "On June 21, when", and substitute therefor "On May 4, when".

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2002, if otherwise qualified.

Dated and mailed April 4, 2003
glovede . usd : 110 :  MC 660.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

This case involves a bank teller, Debra R. Glover, who was fired for making a number of mistakes in handling transactions. The employer cites three incidents: a failure to follow required procedures in cashing a check which turned out to have been fraudulent causing a loss to the bank in that amount, a shortage in the employee's cash drawer at the time of a monthly reconciliation, and an incident in which the employee allegedly failed to follow required procedures for obtaining identification from a customer seeking to have a large check issued from their account. Following the last incident, Glover's manager recommended her discharge because of these incidents. The manager testified that she never thought the employee was intentionally misappropriating funds, and that there was never a question about that at all, but that the reason she recommended discharge was the errors and the losses the employer incurred.

Cashed check - In this incident, the employee cashed a check for $2,470 for a person who did not have an account with the bank. She failed to get a thumbprint from the person presenting the check, as required by the bank's "Check Cashing / Cash Back Policies", Ex. 3, which state, "Touchprint (thumbprint) is required for checks greater than $100 presented by non-account holders, where applicable". She also did not follow a required procedure of getting a supervisor's approval due to the size of the check. It turned out that the check was fraudulent. Because the employee had not followed the procedures, the bank was required to take the loss.

It is clear that this was the employee's mistake. While she did obtain the required forms of identification, and did call the Bank One verification line and obtained a verification number, she conceded that she did not get a thumbprint and did not get supervisor approval. Asked why, her only explanation was that there were "[s]o many people on the line, trying to get the customers taken care of and going on to the next one". She also testified that she "was trying to work as fast and efficient as possible and forgot".

The ALJ referred to this incident as having occurred on June 21, 2002. The commission has modified the ALJ's decision in this respect because it believes that was an error. The "Corrective Action" discipline issued to the employee in connection with that incident was dated on June 21, 2002. However, it appears that the actual incident occurred on May 4, 2002. See, p. 3 of Ex. 4, the "Incident Report", which shows the events as occurring on 05/04/2002.

In the commission's view, however, it is significant to the question of whether the employee's discharge in late July was for "misconduct", that this incident occurred in early May, and that the "Corrective Action" form was not issued to the employee until a month and a half later, at the end of June. Although it may reasonably be inferred that this delay occurred because it took some time for the processing of and then the investigation of the transaction and the determination that the bank would have to bear the loss, the delay occurred nonetheless.

Cash drawer shortage -- With respect to the matter of the reconciliation showing the employee's cash drawer short by $218 at the end of June, it is clear that there was such a shortage, but the circumstances under which this occurred and was brought to the employee's attention are relevant to the question of the employee's culpability. Each teller balanced his or her own cash drawer at the end of each day. If there was an imbalance at that time, the teller would attempt to determine how it occurred and would eventually prepare and file a "cash discrepancy worksheet" which would reflect the fact that they had found and were aware of a discrepancy and had been unable to determine its cause. The employee had been doing her daily balancing, had found discrepancies on a number of days and had filed the necessary cash discrepancy worksheets, and had attempted unsuccessfully to figure out how they had arisen.

Again, it appears that these imbalances were the result of mistakes by the employee. However, the commission credits the employee's assertion, that she was trying to be very careful, take her time, watch what she was doing make sure she did balance, and that she was trying to find the cause of imbalances when she did identify them. In the commission's view, it is also significant to the "misconduct" question that when the monthly reconciliation at the end of June showed that Glover's drawer was $218 short, this was not brought to her attention, and that she was in fact not actually told of that June figure until the meeting at which she was discharged, on July 25.

ID issue - This incident involved a transaction with a check for $23,000. While the employee was still involved in the transaction, her manager walked over and observed what the employee was doing. She observed that the employee accepted, as one of the two forms of identification she obtained from the customer, a driver's license from a foreign country.

The employer argues that it was contrary to the bank's policies for the employee to accept a foreign driver's license. The ALJ correctly noted, however, that the bank's policies are in fact not clear on the question of whether a foreign driver's license was acceptable. The "Check Cashing / Cash Back Policies", Ex. 3, state, under "Primary Identification", "Driver's License or State Issued Photo ID". There is nothing in the "Check Cashing / Cash Back Policies" that indicates that a Driver's License from a foreign country is not acceptable. The employer also did not introduce any evidence that the bank had at any other time or in any other fashion, ever communicated to employees that foreign driver's licenses were not sufficient as "Primary Identification" under this policy.

"Misconduct" ? -- It is true, that the employee made a costly mistake in early May. It is also true, that in June she had periodic difficulty with balancing her drawer, this most probably occurring because of the accumulation of small errors she made in transactions during the course of the day. However, it is clear that these were mistakes, and not in any way a reflection of any intent on the part of the employee to harm the employer's interests. Furthermore, the commission is persuaded that these were the mistakes of a sincere but less than adequately competent employee who had discovered that the position she was in was more demanding that she was prepared for.

Most significantly, the last, precipitating incident - the employee's acceptance of a foreign driver's license as one of the forms of ID - was not persuasively shown to have been a mistake at all. The bank's policies expressly stated that a "driver's license" was acceptable ID, and they nowhere provided that a foreign driver's license was not acceptable as ID. The employee explained, that she thought the driver's license which was presented to her was satisfactory under the bank's policies. The commission credited that explanation, which given the wording in the applicable policies was not unreasonable.

The commission has observed:

Unsatisfactory job performance, while a reasonable basis for the dismissal of an employe, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employe acted with deliberate disregard for the standards the employer expected of her or, in the alternative, with a very high degree of negligence.

Lazarus v. Aurora Health Care (LIRC, Jan. 8, 1997). The caveat in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 259-60, 296 N.W. 636 (1941), that

mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.

must be given meaning, as must the statement of the court in Boynton Cab that "[t]he misconduct provision is to be given a construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision", Ibid. The commission believes that the circumstances of this case are illustrative of what the court had in mind in these respects.

The commission therefore affirms the decision of the ALJ that the employee's discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

cc: Bank One Wisconsin - Milwaukee, WI


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