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

JODI W BOHRINGER, Employee

GRAND ROYALE & REGENCY RESORT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05200559RH


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 7 of 2005, if otherwise qualified.

Dated and mailed September 16, 2005
bohrijo . usd : 135 : 1    MC 665.01

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer explains that the test for misconduct is whether the employee's actions evinced a wilful disregard of the employer's interests. The commission agrees and notes that this was the standard applied by the ALJ and now by the commission.

The employer contends that while the basis for the employee's termination was theft, the employee did admit to violating the employer's policy against co-mingling food in the employer's kitchen cooler. The employer contends that this violation evinced a wilful disregard of the employer's interests, suggesting that the employee's discharge was for misconduct. However, the employer testified that the only reason for the employee's discharge was theft. Where the employer has given the employee a specific reason for discharge, the employer is precluded from advancing other reasons in an attempt to later justify the discharge. Marine National Exchange Bank v. DILHR and Jenkins, Dane County Circuit Court, Case No. 148-328 (May 24, 1976); Arlene M. Jacobs v. Absolutely Beautiful Cleaning, Inc., UI Hearing No. 97608102MW (LIRC October 15, 1998). Therefore, it is clear from the record that the only reason given for the employee's discharge was the allegation of theft.

Therefore the issue for review is whether the employer has met its burden of proof by establishing that the employee committed theft as the employer alleges. As the ALJ correctly held, an employer is required to proof the allegation of theft by clear, convincing and satisfactory evidence that the theft was committed by the employee accused. See Patrick A. Zingale v. Sundance Photo, Inc., UI Hearing No. 04605830WB (LIRC March 11, 2005); Jill G. Patterson v. Neds Pizza, UI Hearing No. 00601161MW (LIRC May 4, 2000); Randall G. Ziska v. Ferrellgas, Inc., UI Hearing No. 970012340FL (LIRC October 10, 1997).

In this case, the employer's witness offered testimony that she observed the surveillance tape of the employee entering the cooler room without anything in his hands and then leaving the cooler room with sliced turkey breast. This witness also testified that it was not the same type of turkey she found in the break room's refrigerator that belonged to the employee. The employee testified that the food he had been observed eating was his own. While admission of the videotape the employer's witness viewed would have been helpful, its omission leaves only the weight of the witnesses' testimony to assess. The ALJ found the employee's assertion more credible than the employer's witness' testimony of the surveillance tape. Because the allegation of theft was not proven by clear and convincing evidence, it cannot be held that the employee's actions constituted misconduct connected with his employment. The appeal tribunal decision is therefore affirmed.

cc:
Sokaogen Gaming
Attorney Andrew S. Caulum



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uploaded 2005/09/20