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

JOSEPH H PIJAN, Employe

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200207EC

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 the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for almost two years as a receiving clerk for the employer, a home improvement products retail business. His last day of work was January 16, 1998 (week 3), when he was discharged.

The employe drove a forklift as part of his duties. He had two collisions within a six month period. After the first, he received a warning for inattentive driving. After the second collision, he stated "I don't care. It's not my money." The employer indicated that for the accident alone, the employe would have probably received a suspension. However after the comment the employer did not feel the employe could be trusted with the employer's property and discharged him.

The issue before the commission is whether the actions for which the employe was discharged amount to misconduct.

The level of negligence necessary to constitute misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05- 0234 (Wis. Ct. App. Feb. 29, 1996, unpublished)

The employe's accidents were the result of negligence and inattentiveness. However, the employe's comments following the second accident expressed substantial indifference to the employer's property beyond mere negligence. Although the employe sought to explain his comments as a joke rather than an expression of his true state of mind, the commission does not credit this explanation. The employe's actions and his words showed his manifest disregard for the employer's interests in its property.

The commission therefore finds that in week 3 of 1998, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $263 for weeks 3 and 4 of 1998; for which he was not eligible and to which he was not entitled, within 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.

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 employe 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 3 of 1998 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 $263 to the Unemployment Reserve Fund.

The initial benefit computation form (form UCB-700), issued on January 16, 1998 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employe 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: June 25, 1998
pijanjo.urr : 178 : 1 MC 660.01  MC 610.08

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing. The ALJ did not articulate any specific credibility impression of the employe or his explanation of his comments following the accident. Those comments are central to a determination of the employe's intent to injure the employer and formed the employer's basis for imposing a harsher discipline than would normally be its practice. Although the employe seeks to dismiss his comments as a joke, the commission makes its own inference after considering his total accident record and finds misconduct.

cc: CHARLES SCHWANKE

JANET M MC DONOUGH
CORPORATE COUNSEL
C/O MENARD INC

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