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

CARL D DRUMMOND, Employee

PRINCE TELECON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03600499MW


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 for about six months as a cable television installer for the employer, a telecommunications contractor. His last day of work was on November 9, 2002 (week 45).

Some customers pay the employee at the time of the installation. The employee is required to keep those funds overnight at his home and then turn them in to the company the next morning.

On October 4 and 5, the employee collected cash from customers but did not turn in those funds to the company. As a result, he received a three-day disciplinary suspension and was required to repay the lost money. The suspension notice warned that the employee could be discharged for a repeat of this offense.

On November 6, 7 and 9, 2002, the employee collected a total of $286.05 from customers. The employee could not find the money and as a result failed to turn in that money to the company. He could not explain why the money was missing. As a result, on November 12, 2002 (week 46), the employer discharged him for theft. The employee was otherwise an excellent worker and, but for his inability to explain the missing money, the employer had no reason to question his honesty.

Unbeknownst to the employee at the time of discharge, his girlfriend was entering his apartment during his absence or while he was asleep, and taking the employee's and the employer's money to support a drug habit. After the hearing in this matter, the employee's then ex-girlfriend admitted to the employee that she was responsible for the missing money.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

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 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."

The employee was not aware at the time of discharge that his girlfriend was stealing the employer's money. The employee was careless in not safekeeping the employer's funds. However, the employer discharged the employee because it believed that he intentionally deprived it of such funds. The commission finds that the employee did not engage in conduct that demonstrated an intentional and substantial disregard of its interests.

The commission therefore finds that 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 decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2002, if he is otherwise qualified.

Dated and mailed November 19, 2003
drummca . urr : 132 : 1 : MC 630.14

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the original hearing regarding witness credibility or demeanor. The commission's reversal is based on testimony provided at a remand hearing.

cc: 
Prince Telecon, Inc. (Menomonee Falls, Wisconsin)
Marquette University Law Clinic


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/11/24