PATRICIA L BENNETT, Employee

WESTERN TECHNICAL COLLEGE, Employer

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:

The employee worked for approximately 28 years as an evening administrative assistant for the employer, an educational institution. Her last day of work was August 25, 2006 (week 34). The employee was discharged on September 15, 2006 (week 37).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer has a written check cashing policy which provides that staff may cash personal checks made payable to the employer up to $25.00. Between August 2002 and August 30, 2005, the employee cashed four personal checks which were returned for non-sufficient funds. As a result, the campus administrator initiated a meeting with the employee on August 30, 2005. The employee signed an agreement that she repay the employer with a money order. The agreement further indicated that the employee "also agreed not to write any more checks to WWTC." On August 25, 2006, the employee wrote a personal check to the employer and received cash in the amount of $25.00. She needed gasoline and said that she forgot about the August 30, 2005, agreement. The employer, after reviewing her employment record, discharged the employee on September 15 for violating the agreement.

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 insurance 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' within the meaning of the statute."

The employee argued that her discharge was not for misconduct. The commission agrees. The employee had not written a check to the employer for a year after signing the agreement. The agreement does not indicate that the employee would be discharged or even disciplined if she wrote another check to the employer. The employee testified that she was not told that she could be discharged for writing another check. While the campus administrator credibly testified that he told the employee that she could be discharged for writing another check to the employer, the commission likewise finds the employee's testimony, that she did not remember being told this, to be credible. The employee may have misunderstood or may have not heard everything that was being said to her at the time. Had the employer considered this to be so serious that a single violation would result in discharge the employer should have noted this on the agreement itself. The employee exercised poor judgment in writing the check. However under the circumstances in this case, the employee's actions did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 37 of 2006, 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).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2005, if otherwise qualified.

Dated and mailed March 28, 2007
bennepa . urr : 145 : 1 MC 640 . 03   MC 640.03  MC 691

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found credible the testimony of the campus administrator who indicated that he verbally informed the employee she could be discharged for writing another check. While the commission does not disagree with this credibility determination, the commission found credible the employee's testimony that she was not aware that she could be discharged for writing another check. The ALJ further pointed out that the employee was upset about going to an employer function and had not intended to drive. The ALJ also thought the employer discharged the employee solely for the final incident. The commission concludes that the employee, when faced with a situation she had not planned for, made a poor decision. While the employer may have made a valid business decision when it discharged the employee, the commission did not believe that the employee's actions amounted to misconduct connected with her work.

cc:
Steve Kowalsky AFT-WI
Western Technical College-Mauston

Appealed to Circuit Court.

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uploaded 2007/03/30