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

ELIZABETH A EWING, Employee

PICK N SAVE MEGA FOODS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606527MW


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 over ten years as a cake decorator and clerk for the employer, a retail grocer. Her last day of work was June 15, 2004 (week 25).

During the course of the employee's employment, the employer had a strict policy requiring that a worker purchase an item before consuming it. Violation of the policy called for immediate termination.

On the employee's last day of work, she purchased a cup of coffee at the beginning of her shift. The business was short-staffed that morning with only the employee and another worker serving customers and taking orders. During this busy time, the employee was hungry and took two bites of a donut. She then threw the rest away, planning to pay for it on her break. Prior to the break time, her manager questioned her about her coffee and donut. She honestly replied that she had not paid for the donut, but planned to do so on her break. She was immediately suspended and then was terminated for violating the employer's purchase policy. Following the discharge, she filed a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's discharge was for misconduct connected with the employment.

The employer did not appear for the hearing in this matter. While the employee admitted violating the employer's purchase policy, she denied any intent to steal the donut from the employer. The mere violation of a rule does not establish misconduct; instead, the reasonableness of the employee's behavior in violating that rule must be analyzed to determine whether it evinces a wilful and intentional disregard of the employer's interests so as to constitute misconduct. Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 512, 126 N.W.2d 6, 12 (1964). Further, mere unsatisfactory conduct or failure in good performance as the result of "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." Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

Although it certainly would have been better to pay for the donut prior to eating it, given the staffing situation the commission attributes her failure to an error in judgment not an intentional disregard of the employer's interests. It was an isolated violation in a ten-year employment without any other disciplines. As such, while the employer may have made a valid business decision in strictly enforcing its policy by discharging the employee, the commission finds that her behavior was an isolated incident of poor judgment.

The commission therefore finds that in week 25 of 2004, the employee was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2004 if otherwise qualified.

Dated and mailed February 9, 2005
ewingel . urr : 150 : 1  MC 630.16

/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 prior to reversing his decision. The commission's reversal is not based on any differing impression of credibility but upon a differing legal conclusion as to whether the employee's one time violation of the purchase policy constituted misconduct.

 

cc: Pick N Save (Milwaukee, Wisconsin)


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uploaded 2005/02/22