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

GREGORY A MULLAN, Employee

THE EQUITABLE BANK SSB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610586MW


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 sixth paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

The employer contends that the employee was discharged for misconduct. The incident of September 4 was not sufficiently egregious to merit a finding of misconduct, particularly where, as here, the employee had no reason prior to September 24 to be aware his job would be in jeopardy for making such an error.

DECISION

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

Dated and mailed June 5, 2003
mullagr . umd : 115 : 3   MC 664

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee worked for 12 years for the employer, a bank. The employee began his employment as a teller, was promoted to senior teller in 1997, was promoted to branch supervisor in 1998, and then was demoted to senior teller on February 26, 2001, due to performance problems.

The issue is whether the employee was discharged for misconduct connected with his employment.

On May 2, 2002, the employee received a written counseling for improper handling of the reissue of a bank check, for miscounting cash and depositing the wrong amount in a customer account, and for failing to include all transactions on his adding machine tape. The counseling report warned him that, if his performance didn't improve, further disciplinary action would result.

On August 30, 2002, the employee was counseled for omitting four scanned checks from a deposit, and for failing to properly process an "on us" check which resulted in the check clearing the customer's account twice. The written counseling report did not indicate any consequence for future conduct of a similar nature.

On September 24, 2002, the employee was placed on probation for a period of 90 days for failing to follow the employer's stop payment procedure, for improperly scanning and recording checks, and for improperly recording the amount of a deposit and cash withdrawal. In the accompanying report, the employee was warned that, ".if there are any further infractions this will lead to disciplinary action, leading up to and including dismissal."

On or around October 28, 2002, the employer discovered that, on September 4, the employee had deposited $37,000 in the wrong customer account. This resulted from the employee transposing the last 2 digits of the depositing customer's social security number.

The employee had no reason to be aware prior to September 24, 2002, that continuing to make the types of errors he had been making would place his job in jeopardy. The commission has consistently held that, except for the most serious of offenses, the employer has an obligation to warn a worker that his performance is not satisfactory and give him an opportunity to improve before a finding of misconduct will be made. Ness v. Deli-More, UI Hearing No. 02403062GB (LIRC April 10, 2003); Hainz v. Nelson Industries, Inc.,, UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public School, UI Hearing No. 78-20774EX (LIRC May 29, 1979) The question here then is whether the employee's conduct on September 4 would qualify as one of those "most serious offenses" for which the employer is not required to issue a warning.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the Wisconsin Supreme Court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand 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' with in the meaning of the statute."

Since it is not alleged and it has not been established that the employee intentionally made the keying error which resulted in the misplacement of the $37,000, the employer is required to prove that the employee engaged in gross negligence when he committed this error, i.e., a culpability which shows a wanton or deliberate disregard of the employer's interests or of the employee's duties. See, e.g., Brown v. Brocksopp Engineering Heat Transfer Products, Inc., UI Hearing No. 00606006RC (LIRC Oct. 30, 2000)

In Moore v. TCF Bank, UI Hearing No. 02609892MW (LIRC Mar. 31, 2003), the commission held that a teller's misplacement of $2700 did not constitute misconduct. 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.

The commission concludes that the employee did not engage in a significant and wanton disregard of his employer's interests. He made a keying error which, although negligent, did not rise to the level of gross negligence. See, Moore, McKeown, supra.

In its petition, the employer takes issue with the administrative law judge's ruling that documents relating to an incident which was not considered by the employer in making the discharge decision were irrelevant and would not be received into the hearing record. The commission agrees with this ruling since the issue under consideration is whether the conduct for which the employee was discharged, nor some other conduct, satisfied the definition of misconduct. The employer also requests that the commission consider a verbal counseling document generated by the employer on October 8 but not offered at hearing. The employer has presented no reason for failing to offer this document as evidence at hearing, and it would be improper as a result for the commission to consider it.

The commission concludes that, in week 44 of 2002, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.


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uploaded 2003/06/13