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

KIRK D JOHNSON, Employee

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606621MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for seven years as a delivery driver for a beverage distributor. His last day of work was March 9, 2004 (week 11). He was discharged on March 24, 2004(week 13).

The employer discharged the employee for falsification of invoices. In particular, that he falsified two invoices which indicated that customers had returned CO2 tanks and received $75 in return. When confronted, the employee admitted that the invoices were false, created using unrelated account names and signed by him. He testified that on two separate occasions, strangers had approached his truck with empty CO2 tanks and asked to return them for the $75 deposit. In order to accommodate them, he generated false invoices, signed them with false customer signatures and gave the individuals $75 in cash. He explained that falsifying invoices in this way was a standard practice, used for reconciling inventory on the truck.

The issue in this case is whether the employee was discharged for misconduct connected with his employment.

This case turns on the credibility of the employee's explanation for his conduct. The employee admits that the invoices were false and that this was a violation of employer policy. He contends that the employer did not enforce its policy and his manager instructed him to create dummy invoices. The commission does not credit this explanation.

The employee's practice would wreak havoc on account record keeping if activity from one account was routinely attributed to another and never accounted for later. The commission finds that the employee knowingly created dummy invoices contrary to the employer's rules and that such conduct was a knowing and intentional disregard of the employer's interests.

The commission therefore finds that in week 13 of 2004, the employee was discharged for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,819 for week 13 and weeks 17 through 24 of 2004; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 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), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2004, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,819 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 25, 2005
johnski . urr : 178 : 1 MC 630.09  PC 714.04

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Prior to reversing, the commission consulted with the ALJ about the credibility of the witnesses. The ALJ acknowledged that the employee's explanation seemed "fishy." However, he argued that the employer had failed to prove that it was untrue. The commission believes that the employee's explanation is inherently incredible. The employer proved that the employee knowingly engaged in conduct contrary to its rules and procedures. Since the employee does not have a credible mitigating explanation for his conduct, the commission concludes that his behavior amounted to deliberate misconduct.

cc: Hondo, Inc. (Milwaukee, Wisconsin)


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uploaded 2005/03/30