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

VINCENT B FARNSWORTH, Employee

FORTRANS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004100JF


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 four years as an over-the-road truck driver for the employer, a transportation business. His last day of work was on April 30, 2003 (week 18).

The employee had gotten four speeding tickets in a year. When the employer ran a check of his license at the beginning of January 2003, it informed him that he had speeding tickets and that he had not reported those to the employer. The employer informed the employee that he needed to report tickets within 30 days of their occurrence, in accordance with the motor carrier's safety manual. About a week after this discussion, the employer learned the employee got another ticket in Michigan. The employer learned of this when it overheard the employee telling another driver about the ticket.

In order to meet the minimum standards of the employer's insurance company, the employee could have no more than three tickets in a three-month period. The employer discharged the employee on April 30 for failing to report the tickets and because the tickets rendered the employee uninsurable under the employer's liability insurance policy. The employer indicated if it had been aware of the tickets it would have either warned him or worked with him so that he would have remained eligible to drive.

The issue that must be decided is whether the employee's discharge was for misconduct connected with his work.

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 argued that his discharge was not for misconduct because he believed he was not discharged as the result of his tickets but because other drivers had been involved in accidents and the insurance company was tired of this, leading to the insurance carrier requiring the employer to discharge its three best drivers. The employee explained that he did not report the tickets because he thought they would be noticed by the insurance company, despite the fact that he was aware it was the driver's responsibility to report tickets.

In this case, the employee had been specifically instructed that he was to report all tickets to the employer. He purposely failed to do so. The employee had been warned when the employer ran its yearly check in January that he needed to report tickets. The employee got another ticket a week later and failed to inform the employer of this. The employee's tickets were all for speeding and as such, were preventable. This combined with the employee's deliberate failure to inform the employer of the tickets, demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 18 of 2003 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,259.00 for weeks 19, 20 and 23 of 2003, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2003, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. Department records reflect that the employee has requalified for benefits as of week 1 of 2004. The employee is required to repay the sum of $ 892.00 to the Unemployment Reserve Fund. The total overpayment is $1,259.00, of which $367 (already recovered) is included in overpayment amounts set forth by an initial determination dated August 8, 2003 and notice of overpayment (form UCB -37) dated June 16, 2003.

The initial benefit computation (UCB-700) issued on May 7, 2003, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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 May 27, 2004
farnsvi . urr : 145 : 1   MC 692

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses the ALJ because it reached a different legal conclusion than the ALJ when applying the law to the facts in the record.


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uploaded 2004/05/28