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


RANDALL G ZISKA, Employe

FERRELLGAS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97002340FL


On April 19, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse initial determination. Hearing was held on May 27, 1997 in Fond du Lac, Wisconsin before a department administrative law judge. On May 29, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer timely filed a petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, and after consultation with the administrative law judge regarding witness credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 7 months as a delivery driver for the employer, a propane gas delivery concern. The employer discharged the employe on April 3, 1997 (week 14), for the alleged theft of an approximately $200.00 cash payment from a customer on one of the employe's routes. The administrative law judge held that the evidence was insufficient to establish, by clear and convincing evidence, that the employe committed the alleged theft. The commission believes the evidence of the alleged theft is clear and convincing, and so reverses the appeal tribunal's conclusion of no misconduct.

The employer contended that on March 11, 1997, the employe received $200 in cash from a customer for a fuel delivery and that the employe kept the cash for his own use. The employer contended that the employe covered this theft by filling out a duplicate sales receipt for another company and then billing the second company's account when such a delivery had not been made.

The employer's allegation has to do with invoice no. 244338. The employe had this invoice as part of his paperwork, which the employe claims he filled out on March 11, 1997, for one of the employer's regular customers (R. G. Schmitt). The carbon copy for invoice no. 244338 lists a different customer in the billing area at the top of the invoice. The meter imprint on both copies of the invoice in question is the same, however. The number of gallons dispensed for each copy of the invoice also is identical. The customer whose $200 cash payment the employe allegedly appropriated sent to the employer the copy of the invoice in question, after the employer sent a second bill to the customer for the March 11 delivery.

In concluding that the employer had failed to prove misconduct, the administrative law judge determined not to consider two pieces of hearsay evidence the employer offered. First, the private customer told the employer she had placed the $200 cash payment under the hood where the propane was delivered. Second, the employer contacted R. G. Schmitt and was told it had no record of the March 11 delivery the employe alleged he had made to Schmitt. Of course, pursuant to the administrative code no finding in disposition of an issue may be based solely upon hearsay evidence. Hearsay evidence may support a finding, however, so the commission has considered this evidence.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Theft of customer payments easily meets this standard, so the issue is whether the evidence is sufficient to establish the alleged theft. Under Wisconsin common law, the "middle burden of proof" is applicable to civil actions involving criminal acts. Kruse v. Horlamus Industries, 130 Wis. 357, 363, 387 N.W.2d 64 (1986). This burden requires that the factfinder be convinced to a reasonable certainty by evidence that is clear, satisfactory, and convincing. The question, then, is whether the circumstantial evidence in this case, coupled with the hearsay testimony, is sufficient to meet this standard. The commission believes that it is. First, the employe had sole control over the invoice in question. Second, the meter imprints on the invoices are identical, which indicates that the employe, when he made the delivery covered by the invoice, still had the carbon page which the private customer later returned to the employer as proof of her payment. Third, the Schmitt account was one for which the employer made regular deliveries and so used pre-printed invoices (and not handwritten ones as in this case). Finally, the record establishes no other explanation whatsoever for the missing payment.

The commission therefore finds that, in week 14 of 1997, the employer discharged the employe for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04 (5). The commission also finds that the employe received benefits in the amount of $42 per week for weeks 15 and 16 of 1997, and $213 per week for each of weeks 17 through 38 of 1997, totalling $4,770, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), he must repay this sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat.

§ 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. 108.13 (f), it also was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 14 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay the sum of $4,770 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: October 10, 1997
ziskara.urr : 105 : 3  MC 630.14 PC 714.03

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The administrative law judge had indicated that credibility was a factor in his decision-making, so the commission conferred with him before determining to reverse the appeal tribunal decision in this case. The administrative law judge found the testimony of the employer's witnesses to be credible; he simply did not believe that the evidence the employer presented was sufficient to meet the middle evidentiary burden applicable to civil proceedings in which the conduct in question also is a violation of the criminal law. For the reasons stated in the decision, the commission believes the evidence was sufficient to meet that standard.

cc: FERRELLGAS INC

ATTORNEY DANIEL L PARKS
ZACHERL O'MALLEY & ENDEJAN SC


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