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

DEBORAH F JOHNSON, Employee

WEST SIDE PICK N SAVE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609833MW


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 for over 11 years as a cashier for the employer, a grocer. Her last day of work was October 6, 2004 (week 41).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On her last day of work, the employer confronted the employee about removing coupons used by customers from her register so that she could use the coupons herself. This would have amounted to a loss to the employer of the amount of the coupon because the employer can send coupons to a distribution center to be reimbursed. The employer instructed her not to return to work until she spoke to the general manager and then called the police who arrested her and took her away, handcuffed, in front of co-workers. The employee did not call the general manager and did not return to work. The general manager testified that even if he talked to the employee, and learned that she had taken the coupon, he would have discharged her. The employee did not contact the employer because the employer called the police who escorted her from the premises in handcuffs and concluded that a person with "any sense" would realize that she would no longer be allowed to return to work as a cashier.

The employee argued that she had been discharged by the employer. The commission agrees. The employer called the police and the employee was arrested. The employee correctly assumed that, because she had taken the coupon, she would be discharged. As such, the employee did not quit but was discharged by the employer.

Because the employee was discharged, it must be determined whether the employee's discharge was for misconduct connected with her work.

The employee admitted to taking a coupon, used by a customer and worth $1, from her drawer. Clearly, the employee's behavior warranted some discipline on the part of the employer. The employer argued that the employee should have known this was theft because a coupon was like cash. However, the employer did not establish that the employee knew that the employer would consider her taking the coupon to be stealing. Coupons are commonly available and are given freely to potential customers by manufacturers. As such, coupons seem less like money. At any rate, the employee credibly testified she was not aware that she would be discharged for taking the coupon. While the employee showed extremely poor judgment the employee's actions did not demonstrate such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 41 of 2004, the employee was discharged but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2004, if otherwise qualified.

Dated and mailed February 28, 2005
johnsde . urr : 145 : 1 MC 626  MC 691

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission concluded that the employee was discharged because the general manager indicated that he would have discharged the employee for taking the coupon. As a result, even if she contacted the employer, she would have been discharged. Based on the circumstances the employee's belief that she had been discharged on her last day of work was reasonable.


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