ALFRED R SCHULZ, Employee

TIRES PLUS, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits for weeks 22 through 29 of 2004, and until he has earned wages in covered employment performed after the week of discharge equaling at least 14 times the $329 weekly benefit rate which would have been payable had the discharge not occurred.

Dated and mailed December 22, 2004
schulal . usd : 178 : 4   PC 735 LIRC

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review, the employee disputes the findings of the ALJ that he deliberately manipulated the employer's computer system to generate higher commissions and offers additional facts concerning the inefficiency and confusing nature to the new computer program and its poor implementation. The central issue in this case is credibility. The employee's actions are not in dispute. What remains is the employee's motive for checking the override box on his commissions. The employer discharged the employee because it believed the employee knowingly checked the override to generate higher commissions. The ALJ listened to and considered the employer's case and the employee's testimony that he was unaware that it was inappropriate to use the override button. He credited the employer's witnesses that the employee knew this was against the employer's policies. Certainly the employee was long accustomed to having his commissions reduced by coupons and discounts. If the employer had made this major change in its compensation system, the employee would have been expressly told about it. The commission does not credit that the employee overrode the commission discounts without intending to harm the employer's interests.

The employer submitted a brief letter indicating that it no longer wished to contest the awarding of benefits to the employee. The employee indicates that he expects a remand for further hearing. The commission has considered the employer's letter but sees no grounds for remanding the matter. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. There is no indication that the employer has discovered material noncumulative evidence since the hearing which it could not have known of before the hearing. The employer does not indicate that it has newly discovered evidence that the computer program was faulty or that the employee was misled by poor training.

Neither will the commission reverse solely on the basis of the owner's concession. The individuals with first hand knowledge of the circumstances surrounding the employee's discharge vigorously pursued the employer's case against the employee and persuaded both the ALJ and the commission that the employee's discharge was for misconduct. A claimant's eligibility for unemployment benefits is not to be determined simply by looking at private agreements negotiated between the claimant and his employer. Rather, it depends on the application of the provisions of the Unemployment Compensation Act to all relevant facts, including such things as the actions and intentions of the employee. See, Roberts v. Industrial Commission, 2 Wis. 2d 399, 86 N.W.2d 406 (1957).

In this case, the commission credits the employer's witnesses that the employee was on notice of the appropriate way to ring up his sales and knowingly overrode the discount reduction to generate higher commissions. Therefore, the commission affirms the appeal tribunal decision that the employee was discharged for misconduct.

cc: Tires Plus (Beloit, WI)

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