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

CHRISTOPHER L METZGER, Employee

CASEY'S MARKETING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002478BD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a year and a half as a cashier for the employer, a convenience store. He was discharged from his employment on February 27, 2003 (week 9).

The issue is whether this discharge was for misconduct connected with his employment.

On February 19, 2003, the employee sold cigarettes to a male customer who looked young but well over the age of 18.

Immediately after this sale, another male came in to the store and advised the employee that this had been a sting operation, but refused to tell him the result of the sting.

On February 26, the employee's supervisor, the manager of the convenience store, contacted the employee and told him that the employer had received a report that the employee had sold cigarettes to a minor during a routine sting operation on February 19, and that he was being discharged as a result.

The employee understood that the employer's policy required him to check the identification of any customer who looked younger than 25, but that failing to follow this policy would not subject him to immediate termination.

The employee's supervisor had told the employee that, if he were caught selling age-restricted products to an underage customer, he would be terminated.

The employer's "Selling Age Restricted Products" policy (exhibit #1) sets forth the procedure to be followed for determining the age of customers attempting to buy alcohol, cigarettes, ammunition, or lottery products; requires that identification be checked if such a customer appears to be under the age of 25; and states that "[a]ny employee who is convicted of selling an age-restricted product will be facing fines, a possible jail sentence, attorney fees, courts costs, and may be terminated as a Casey's employee."

The Tobacco Sales Training Checklist (exhibit #2) that the employee signed on November 11, 2002, set forth training tips for sale of tobacco products, including #4-"Fines and disciplinary action for making an illegal tobacco sale."

The employer did not prove by competent evidence that the customer to whom the employee sold cigarettes during the subject incident was under the age of 18. The employer relied at hearing upon the testimony of two of its managers that they read and relied upon a report prepared by an unidentified person in concluding that the customer was 16 years of age. The employer's testimony in this regard is unsubstantiated hearsay-in fact, it is hearsay within hearsay. As a result, the record does not support a conclusion that the employee sold cigarettes to someone under the age of 18 as alleged.

It is a reasonable inference from the record that the employee did not check the identification of the subject customer and that this customer appeared younger than 25. However, the record does not support a conclusion that this justified the immediate termination of the employee. The employer's evidence only establishes that its policy, as written and as communicated to the employee, requires the immediate termination of an employee selling cigarettes to someone under the age of 18, not the immediate termination of an employee failing to check the identification of someone who appeared younger than 25. The employer did not give the employee sufficient notice that his job would be in jeopardy if he failed to check the identification of a customer who appeared younger than 25 before selling cigarettes to him. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003) (except in those cases in which the alleged conduct is sufficiently egregious, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct).

Failure to check the subject customer's identification does not rise to the level of egregious conduct which, without warning, justifies a conclusion of misconduct. See, Anthony v. Walgreen Co. Illinois, UI Hearing No. 02610306MW (LIRC Aug. 13, 2003)(failure to check identification of customer who employee believed was under 40 years of age but not under 21 years of age was error in judgment but not misconduct).

The commission concludes that, in week 9 of 2003, 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 9 of 2003, if otherwise qualified.

Dated and mailed November 7, 2003
metzgch . urr : 115 : 1  MC 687

/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 reversing his decision, because this reversal was not based upon a differing view as to the credibility of witnesses.

cc: Casey's Marketing Co. (Juneau, Wisconsin)


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