SHAWN C GARRISON, Employee

FELTZ LUMBER CO 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 August 19, 2004, the commission, pursuant to Wis. Stat. § 108.09(6)(d), on its own motion, ordered that additional testimony be taken before an ALJ acting on behalf of the commission. The remand hearing was held on September 27, 2004.

The commission has considered the petition, the parties' positions, and reviewed the evidence submitted. Based on its review and the additional evidence elicited at the remand hearing, the commission makes the following:

The employee worked almost one year as a wood worker for the employer, a wood molding manufacturer and lumber retailer. His last day of work was October 3, 2003 (week 40), when he was discharged. At the time of discharge, in addition to poor productivity and quality, the employee was notified that the employer suspected him of theft. In fact, as of the discharge date, the employer initiated a police investigation into the theft of a $150.00 nail gun from its business.

Following the discharge, the employee filed a claim for unemployment insurance benefits. At the adjudication level, the employee denied stealing the nail gun and a determination was issued allowing benefits to the employee on the grounds that the employer had not met its burden of proof.

The employer filed a timely appeal and, at the initial hearing in the matter, the employee admitted taking the nail gun but denied that the theft was a reason cited for discharge. The administrative law judge allowed unemployment insurance benefits to the employee on the grounds that theft was not the reason for discharge.

At the remand hearing, the employer appeared but the employee did not. The employer offered a certified judgement of conviction for theft based upon the employee's guilty plea.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is not eligible for unemployment insurance benefits until seven weeks have elapsed after the discharge and until the employee has earned 14 times his or her weekly benefit rate in subsequent covered wages.

The issue before the commission is whether the employee's discharge was for misconduct connected with his employment.

As a matter of public policy, circuit court decisions have denied unemployment insurance benefits to an employee who is found guilty of criminal theft from his or her employer, even if the conviction occurred after the unemployment hearing and no evidence of theft was introduced at that unemployment hearing. Puckett v. Samuels Recycling Company, UI Dec. Hearing No. 95000269JV (LIRC September 21, 1995).

The employee stole from the employer during his employment. He was discharged based upon the employer's suspicion that he stole from it. The employee's actions clearly evinced a wilful and intentional disregard of the employer's interests and of the standards of conduct that the employer had a right to expect. It was misconduct connected with the employment.

Given the commission's finding of misconduct, the employee was not eligible for the $5,122 in unemployment benefits that he received in weeks 41 of 2003 through 14 of 2004 and the next issue to be decided is whether the employee must repay those erroneously paid benefits.

Throughout the employee's unemployment benefit claim, the employer has alleged that the employee's discharge was for misconduct connected with the employment. There is no evidence of employer error as a basis for the erroneously paid benefits. Thus, pursuant to Wis. Stat. § 108.22(8)(c), the repayment of the overpaid benefits will only be waived if the overpayment was due to department error and without fault, false statement, or misrepresentation on behalf of the employee.

At the initial determination level, the employee denied stealing from the employer. Then, at the hearing stage, while the employee admitted taking the nail gun from the employer, he denied that theft was cited as a reason for the discharge. The commission finds these misrepresentations are sufficient to deny waiver of the repayment of the overpaid benefits.

The commission therefore finds that in week 40 of 2003 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). The commission further finds that the employee was paid benefits totaling $5,122 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was caused partially or wholly by the employee, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2003, and until seven weeks have elapsed since the end of the week of the discharge and the employee has earned wages in covered employment after the week of the discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,122 to the Unemployment Insurance Reserve Fund.

Dated and mailed January 19, 2005
garrish . urr : 150 : 2   MC 630.14

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not confer with the administrative law judge prior to reversing his decision. In particular, the commission based its reversal upon additional evidence obtained at the remand hearing.

NOTE: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount of this or any later claim. If the employee was also paid base period wages from work 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 and for a reimbursement employer, to the fund's administrative account.

Repayment instructions for the amount that must be repaid 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 payments of unemployment 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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