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

THOMAS B RAYMER, Employee

THINGS REMEMBERED INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602941MW


On February 27, 2004, the Department of Workforce Development issued an initial determination which held that the employee's discharge had not been for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on April 30, 2004 in Milwaukee, Wisconsin before a department administrative law judge. On May 5, 2004, the administrative law judge issued an appeal tribunal decision reversing 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 on 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 worked approximately five months as a store manager for the employer, a chain of retail gift shops. The employer discharged him on February 6, 2004 (week 6), for having given a customer an unauthorized discount on a purchase, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

On January 23, 2004, the customer in question ordered several awards from the employer's store, to be distributed to real estate agents on January 30. At this time, the employee verified that the awards were in the employer's warehouse stock. For whatever reason, by January 26 the awards were no longer in stock. When the employee informed the customer, the customer was livid. The employee had no comparable items to offer the customer, who eventually selected items substantially more in price than the original ones selected. At the same time, the customer demanded that she receive the newly selected items at no additional cost. The employee attempted to contact his supervisor for approval of what would be an unauthorized discount for the purchase, but was unable to do so. The customer continued in her demand, and the employee eventually relented, indicating that he would "make it right" by giving her an "even exchange." To create the even exchange, the employee made up a customer return of approximately eight dollars and gave the customer a 30 percent discount instead of the 20 percent the customer was entitled to. When the employee rang up the transaction, the figures still did not match so the employee treated the customer as being tax exempt. The entire transaction resulted in the customer obtaining a discount of approximately $84.00 to which she was not entitled; the next day, the employee made up that difference with a charge on his personal credit card. The employer's computer system "flagged" the transaction, leading the employer to investigate the matter. The employer originally determined to give the employee a warning for the matter; when the employee admitted he knew it had been wrong for him to have processed the transaction as he did, the employer decided to discharge him instead.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission believes the employee's failure is better characterized as an isolated instance of poor judgment, however, than as misconduct. The employee was under significant pressure from the customer to complete the transaction at no additional cost to her, and the customer in question was one of the employer's repeat customers. The employee attempted to contact a supervisor to approve the proposed transaction, but the supervisor in question was not available at the time. The customer's pressure upon the employee remained, however. Further, the employee himself was a store manager and, as such, must be considered to have had some discretion in dealing with such situations. Finally, the employee was simply following the age-old adage of keeping the customer satisfied. For all of these reasons, the commission cannot conclude that the employee's actions were the intentional disregard of the employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 6 of 2004, 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 6 of 2004, if he is otherwise qualified.

Dated and mailed October 28, 2004
raymeth . urr : 105 : 2   MC 691  MC 675

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, 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 matter. The commission has found the same facts as did the administrative law judge; the commission's reversal thus is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission has concluded as a matter of law that the employee's admitted failure, while of poor judgment, did not rise to the level of misconduct for unemployment insurance purposes.


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uploaded 2004/11/03