BRIAN K LITTLE, Employee

KENTUCKY FRIED CHICKEN, Employer

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 makes the following:

The employee worked a year and a half as a part-time cook for the employer, a fast food restaurant.

The issue is whether the employee's separation was a quit or discharge, and whether it occurred under circumstances which would permit the payment of benefits.

On October 13, 2002, Assistant Manager Ernest Garza filled in for an absent manager at the location where the employee worked. October 13 was the only day that Garza filled in at that location.

The employee was scheduled to work the 1-5 p.m. shift on October 13. That morning, he called Sharon Klaas, who was an assistant manager at the employee's location and the opening manager that day, and told her that he would be late for his shift because he was going to church with his mother. Klaas told the employee that she would cover his shift for him but, if he returned by 1 or 2 p.m., he should call her and see if he was still needed.

The employee punched in at 5:20 p.m. on October 13 wearing his uniform, left the restaurant after punching in without speaking to Garza or any other manager, appeared at the restaurant again at 9:00 p.m. (closing time) in uniform, and attempted to punch out but was told by Garza that he had already punched him out.

If the employee had asked to work when he appeared at the restaurant at 5:20 p.m., he would not have been permitted to do so because there was another cook working at that time as scheduled.

The employer's handbook, which the employee received when he was hired, provided that punching in for a time when you are not working was considered falsification of a company document, and grounds for immediate termination.

On the employee's termination document (exhibit 1), he wrote as follows:

Sharon had told me to come back to work after I had come back from my assembly in Janesville for my church. So I came back at 5:15 and punched in. I went to the back. The schedule said that I called in so I left and forgot to punch out.

The employer argues that, consistent with its policies, since the employee walked out during a shift, he should be considered to have abandoned his job, i.e., to have quit. However, it would be illogical to find job abandonment where the employee was not scheduled to work the shift he is alleged to have abandoned. As a result, the commission concludes that the separation was a discharge, not a quit.

The unrebutted evidence of record is that the employee punched in for a shift that he was not scheduled to work; that he left the work site after punching in; that he showed up in uniform at closing time and attempted to punch out; and that there was an unfamiliar substitute manager on duty that day whom the employee did not attempt to engage when he punched in or attempted to punch out. The commission has always placed special emphasis on the integrity of the time/payroll system. See, e.g., Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998) ("While the employee was only 19 minutes late for work, which might not amount to misconduct, the commission considers accurate time reporting to be very serious.The commission finds that the employee's falsification of his time card amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work."); Poindexter v. Northwest General Hospital, UI Hearing No. 98606560MW (LIRC Jan. 27, 1999) The competent evidence of record here supports a conclusion that the employee engaged in time theft, and that this time theft constitutes misconduct.

The commission therefore finds that, in week 42 of 2002, the employee was discharged for misconduct.

The commission further finds that the employee was not paid benefits to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 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. The initial Benefit Computation (Form UCB-700), issued on November 1, 2002, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed May 20, 2003
littlbr . urr : 115 : 1  MC 630.09  MC 697  VL 1007.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission notes that it held a credibility conference with the administrative law judge before deciding to reverse his decision.

The administrative law judge based his conclusion that the employee simply forgot to punch out on the employee's written statement to this effect on the discharge document (exhibit 1). However, the employee failed to appear at hearing and his written statement on exhibit 1 is unsubstantiated hearsay, which, pursuant to § DWD 140.16(1), Wis. Adm. Code, may not serve as the sole basis for an ultimate finding of fact.

The administrative law judge also used the employee's statement on the discharge document (exhibit 1) as the basis for his conclusion that the employee reported to work when he returned from church based on instructions to that effect from Klaas. However, as concluded above, this statement is unsubstantiated hearsay. Moreover, Klaas credibly testified that this is not what she told the employee, and it would have been illogical for her to do so since another cook was scheduled to work the later shift.

The administrative law judge based his conclusion that the employee would not have attempted to falsely claim hours he had not worked on his finding that, "The employee could not have clocked in and out for a shift he did not work without being observed by a supervisor." There is no evidence in the record to support this finding.

Finally, the ALJ found that the employee left on October 13 at 5:20 p.m. "without punching out when he saw that he had been crossed off the schedule." There is no basis in the record for finding that the employee had been "crossed off the schedule." The record shows that the employee had been scheduled to work 1-5 p.m. that day, and that this schedule had never been changed. The record does not show that the employee had any reason to believe that he was scheduled to work after 5 p.m. that day and, as a result, no legitimate reason to have punched in at 5:20 p.m.

cc: Kentucky Fried Chicken (Beloit, Wisconsin)

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uploaded 2003/05/30