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

PATRICK A ZINGALE, Employee

SUNDANCE PHOTO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605830WB


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 approximately two years as a truck driver for the employer, a photo business. The employee's last day of work was May 17, 2004 (week 21).

The issue for review is whether the employer discharged the employee or whether the employee voluntarily quit.

On May 18, the employee was called to a meeting by the president of the company, Nick Takton and Richard Ellingboe, assistant to the president. During that meeting, Mr. Takton accused the employee of siphoning gasoline out of the employer's truck that the employee used. During this meeting, Mr. Takton told the employee to "Get out of here." The employee denied stealing gasoline from the employer to which Mr. Takton then offered the employee a second chance on the following Monday to come to work and demonstrate that he wasn't siphoning gasoline out of the employer's truck. The employee admitted that he rejected this offer by Mr. Takton, in part, because he could not physically change the mileage or construction on his route. Regardless of the employee's reason, the fact remains the employee did not accept the employer's "second chance" or offer to prove that he was not siphoning gasoline from the employer's truck.

The ALJ found that while the employer at one point indicated that the employee was discharged, the notice of discharge was retracted before the meeting ended and that by failing to report to work thereafter the employee voluntarily terminated his employment. The commission disagrees with this determination. The employee never accepted the employer's retraction. Therefore when the employer offered the employee another chance to prove himself, the employee simply refused that offer along with the president's implicit retraction of the discharge. Consequently, because a quit cannot be found without a mutual acceptance of the employer's discharge retraction, the commission finds that the employer discharged the employee.

The remaining question is whether the employee's discharge is for misconduct. 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."

Furthermore, when alleging that an employee has committed theft, as the employer did here, the employer is required to produce clear and convincing evidence that the theft occurred. Jill G. Patterson v. Neds Pizza, UI Hearing No. 0060161MW, (LIRC May 4, 2000). Here, the most revealing exhibit, Exhibit 5, contained a spreadsheet formula that was prepared by the employer's witness' husband who did not testify at the hearing. The employee's testimony that his route was somewhat longer than the other drivers and that he faced construction delays was unrebutted. Thus, while there was testimony and documentation surrounding the employer's theft allegation, the employer's evidence failed to clearly and convincingly establish the employee siphoned gasoline from the employer's truck.

The commission therefore finds that in week 21 of 2004, the employee was discharged but not for misconduct connected with his employment 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 21 of 2004, if otherwise qualified.

Dated and mailed March 11, 2005
zingapa . urr : 135 : 4   MC 626  MC 630.14

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

Because the commission's reversal is not based upon a differing credibility assessment from that made by the ALJ, the commission did not confer with the ALJ before determining to reverse the appeal tribunal decision in this case. Rather, the commission reaches a different legal conclusion based on essentially the same set of facts found by the ALJ.

Here, the commission disagrees with the ALJ that the employer could retract the notice of discharge without acceptance of the employer's retraction by the employee. Consequently, the employee did not quit but rather he was discharged by the employer. Because the employer failed to meet its burden of proof regarding its allegation of theft by the employee, the commission concludes that the employee's discharge was not for misconduct.


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