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

CURTIS J TEMPLIN, Employee

BERGSTROM CHEVROLET CADILLAC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005237FL


On July 25, 2002, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 24, 2002 in Fond du Lac, Wisconsin before a department administrative law judge. On November 8, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately a year and a half as a sales representative for the employer, an automobile sales and service concern. The employer discharged him on July 9, 2002 (week 28), and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission must conclude that it was not, and so reverses the appeal tribunal decision.

In December of 2001, the employee agreed to allow an acquaintance to steal his personal vehicle. He arranged to take one of the employer's vehicles home overnight so that he could leave his personal vehicle at the employer's premises, from where it was taken. The employee reported the "theft" to the police. He had comprehensive coverage on the vehicle and claimed and received payment for the loss from the insurer. In May of 2002, the police came to the employer's premises for further questioning of the employee and others. At that time, he admitted his involvement in this scheme and agreed to cooperate with the police in building a case against the other participants. The employer's general manager spoke with the employee about the matter and told him his job was not in jeopardy because the matter had nothing to do with work. With the employer's permission, he was away from work several times in the next several weeks assisting law enforcement personnel. He also made restitution to the insurer.

On July 2, 2002, a substantial story concerning the filing of criminal charges in the case appeared in the daily newspaper serving the city where the employer's dealership is located. The story was headlined, "3 area men are charged in auto insurance scam." Citing the criminal complaint, it reported that the car had been stolen from the employer's dealership after the employee, who was named and identified as a dealership employee in the story, had left his personal car at work and taken a company car home. The story further reported the employee's receipt of the insurance proceeds and that the employee had admitted to police that his theft report was false. Following the appearance of this article, the employer discharged the employee.

Wisconsin Stat. § 108.04(5) disqualifies from unemployment insurance eligibility an employee "whose work is terminated by an employing unit for misconduct connected with the employee's work." As indicated, disqualification requires that the discharge in question be for misconduct. The first issue, therefore, is the actual reason for the employer's discharge of the employee. The administrative law judge characterized the employee's failure as having been the misuse of the employer's property to commit a crime. Were the record to indicate that that was the reason for the discharge, the commission would have no difficulty whatsoever in affirming a conclusion of misconduct. The record indicates, however, that the employee's actions were not the reason for the discharge. The discharge followed directly the newspaper article in which the employee was identified as an employee of the employer. The employer knew about the employee's conduct for several weeks before the appearance of the article, and neither took any action against the employee nor indicated that it intended to do so. Finally, the employer's general manager expressly stated that the employee's job was not in jeopardy because the matter had nothing to do with his work. Given these factors, the commission can only conclude that the discharge of the employee was due to the appearance of the newspaper article, and that is not misconduct on the employee's part.

The commission therefore finds that, in week 28 of 2002, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 28 of 2002, if he is otherwise qualified.

Dated and mailed August 5, 2003
templcu . urr : 105 : 2   MC 617  MC 665.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, given the timing of the appearance of the newspaper article and the general manager's knowledge of the matter and comments to the employee, the employee's underlying conduct cannot be considered the reason for the discharge.


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