LYDIA A KANOUSE, Employee

TOPPERS PIZZA INC, 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. On October 22, 2004, the commission remanded this matter for further hearing. Further hearing was held on November 15, 2004. 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:

The employee worked about 18 months as an office worker for the employer, a pizza business. She was discharged on February 17, 2004 (week 8).

The employee's duties included opening the employer's mail. On or about January 13, 2004, the employer received a court-ordered garnishment of the employee's wages. She was embarrassed and did not process the correspondence immediately.

The employee had lunch with the employer's owner on January 15, at which time she had the garnishment correspondence in an envelope and explained what had occurred. She asked the owner to take the correspondence but he directed her to give it to the employer's accountant.

Thereafter the employee, after work hours, mentioned the garnishment to the accountant. The accountant considered the conversation to be on a personal rather than professional level. The employee told the accountant that she could not afford to have the money taken out of her check. The employee also stated that she believed she was exempt from the garnishment because of her income. The accountant advised the employee to speak to the owner about the matter. The employee showed the accountant some paperwork. He again told the employee to take the matter up with the employer. The employee did not give the garnishment papers to the accountant and did not ask him to process the garnishment.

On February 5, another office worker received a call from the Walworth County Housing Authority regarding papers that it had sent the employer. The office worker mentioned the call to the employee who responded that she had already spoken to the owner about the matter. On or about February 11, the office worker received a second call from Walworth County noting the employer had not responded to the garnishment. The office worker told the employee about the call on Friday, February 13, and stated that the employer was going to be held in contempt. The employee stated that she was going to speak to the accountant about it. The office worker replied that it needed to be taken care of that day. The office worker left work at 2:00 p.m. on February 13 to attend a marriage retreat.

On Tuesday, February 17, Walworth County again contacted the employer regarding the garnishment. At that time the owner spoke with the accountant. The account indicated he had had what he considered to be a personal conversation with the employee about the matter between February 2 and February 5. The accountant informed the employer that he was not given any paperwork about the garnishment. That same day the employer discharged the employee for failing to give the garnishment papers to the accountant as she was directed to do on January 15. When informed of her discharge the employee indicated that she had meant to take care of the matter that day. The employee also indicated that the garnishment might not go through because of her income.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment. 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 commission finds that the employee did not give the garnishment documents to the accountant as she had been directed to do. The commission infers from the employee's inaction and statements that she was attempting to delay for as long as possible implementation of the garnishment. The employee kept the garnishment documents for over four weeks after discussing the matter with the owner. After being alerted on February 5, that Walworth County was making inquiries regarding the garnishment the employee did not inform the owner that she did not give the papers to the accountant and did not try to give the papers to the accountant at that time. Likewise, when the employee was informed on February 13, that the employer risked being held in contempt the employee did not notify the employer that she had not followed through with the owner's directive to give the papers to the accountant. The commission credits the office worker's testimony that the employee was notified by no later than 2:00 p.m. on Friday of the second call from Walworth County. Further, at the time of discharge the employee did not indicate that she made any attempts to address the matter, by contacting the accountant or Walworth County, only that she had intended to do so that day.

The commission therefore finds that in week 8 of 2004 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $557.00 for weeks 12 through 17 of 2004, 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. Wis. Stat. § 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), departmental 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, by commission or omission, 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 departmental 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 departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 8 of 2004, 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 18 of 2004. The employee is required to repay the sum of $557.00 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 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 December 30, 2004
kanouly . urr : 132 : 1 : MC 620   MC 630.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The commission did not consult with the ALJ who presided at the original hearing regarding witness credibility and demeanor. The commission's reversal is based on testimony adduced at the remand hearing that was not available to the ALJ when she made her decision.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

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