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

DONALD S FEILEN, Employee

DOREENS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600094MW


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 six months as a bartender for the employer, a bar and grill. He was discharged on November 22, 2006 (week 47), for alleged theft.

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee was issued warnings on October 26, November 1, and November 12, 2006, for discrepancies at the end of his shift between the amount of cash in the register and the register tape, and for shortages in the petty cash fund. The warnings did not state or imply that the employer suspected he was committing theft.

The employer concluded that the employee had committed theft during his November 20/21 shift and discharged him as a result. The employee did not admit to committing theft.

The employer failed to prove by clear and convincing evidence that the employee committed theft on November 20/21, 2006, and failed, as a result, to prove that he engaged in misconduct.

The commission therefore finds that in week 47 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The employee's petition is accepted for commission review. The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2006, if otherwise qualified.

Dated and mailed May 11, 2007
feiledo . urr : 115 : 1   MC 630.14  PC 714.03 PC 714.07

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


Late petition

The decision issued by the administrative law judge was dated and mailed on March 8, 2007, and stated on its face that an appeal must be received or postmarked by March 29, 2007. The employee's appeal was postmarked in Milwaukee on March 30 and received by the department on April 2, 2007.

The employee explained to the commission that he posted the petition in Wauwatosa on March 29, 2007, at 3:50 p.m. and was assured by the postal clerk with whom he spoke at that time that it would be postmarked that day.

The commission has previously held, in considering parallel circumstances, that, where a petitioner contends that his petition was placed in the postal stream on the day prior to the date of postmark, and where the postmark indicates a different city then that from which it was mailed, the petition will be accepted. See, Lang v. General Business Services, Inc., UI Hearing No. 98003796MD (LIRC Feb. 16, 1999); Ajer v. Andersen Windows, UI Hearing No. 04202666EC (LIRC Feb. 18, 2005); Calvert v. Goodyear Tire & Rubber Co., UI Hearing No. 06002060MD (LIRC Nov. 2, 2006). The commission's rationale is that the postal service's decision to postmark mail at a different city from where it was deposited is not a procedure of which a reasonable person can be expected to be aware.

Applying this principle here, the commission accepted the employee's petition for review.

Merits

The employer concluded that the employee had committed theft during his November 20/21 shift and discharged him as a result.

The employer's proof consists of the following:

(a) The testimony of the employer's owner and her boyfriend that they viewed a videotape showing the employee, three times during his shift, accepting cash for a sale, pressing the "no sale" key to access the register, removing cash from the register in the amount of the sale as well as in the amount of the customer's change, and placing the cash in the amount of the sale in his tip cup, which he took at the end of his shift;

(b) The testimony of the employer's owner that she had hired an undercover police officer to watch the employee's actions during this shift, and this officer told her that he had observed the employee taking the actions described in (a) above;

(c) The testimony of the employer's owner that there was a $50 discrepancy between the register tape and the cash in the register at the end of the employee's shift on November 20/21; and

(d) The testimony of the employer's owner and her boyfriend that, when they met with the employee to discuss this incident, he admitted that he had stolen $500 from the employer. The employee testified in this regard that he was being sarcastic when the owner, who was a friend of his, asked him how much he had stolen from her.

The employee denies that he committed theft. He testified that a customer named Bob had won two bar games during the employee's shift, had wanted each time to give the employee the cost of a drink ($3.25) as a tip, and had handed the employee a $10 bill the first time and a $5 bill the second time for this purpose; and the employee rang up "no sale" in order to get change for the $5 and $10 bills, and had given Bob the change and kept the $3.25 tip.

The employer, which has the burden to prove misconduct, did not offer into the hearing record the videotape, the testimony of the undercover police officer, or the register tape.

In Robinson v. Central Parking System of Wisconsin, Inc., UI Hearing No. 03603846MW (LIRC Dec. 16, 2003), the commission, considering, as here, proof in the form of a security videotape, held that the videotape itself, not the testimony of someone who viewed the videotape, would constitute the best evidence of what occurred during the subject incident, and, as a result, the testimony alone would not constitute competent evidence. The commission again followed this approach in Scanlan v. Country Castle, UI Hearing No. 05005134WK (LIRC Feb. 24, 2006).

The owner's testimony as to what the undercover police officer told her is uncorroborated hearsay evidence.

In the absence in the record of the security videotape and the undercover police officer's testimony, what remains as competent supporting evidence are (c) and (d) above.

(c) is the owner's testimony, without corroborating documentation, that there was a $50 discrepancy in the register that evening. Such a discrepancy, however, would be unrelated to what the owner claims the videotape shows because the "no sale" transactions on the videotape would presumably not have been recorded as sales on the register tape.

(d) is the owner and boyfriend's testimony that the employee admitted he stole $500. The employee, however, who has consistently denied engaging in theft, and who was a personal friend of the owner and her boyfriend, testified that he made this comment sarcastically because he had no reason to believe at the time that the owner suspected him of theft. The commission finds that the employee's version of events is the more persuasive.

When theft is alleged as the basis for discharge, the employer, in order to satisfy its burden of proof, is required to convince the factfinder to a reasonable certainty by evidence that is clear, satisfactory, and convincing. 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).

The competent evidence offered by the employer is insufficient to satisfy the clear and convincing standard, and, as a result, the commission concludes that the employer failed to sustain its burden to prove that the employee engaged in misconduct.

A credibility conference with the ALJ was not conducted since the commission did not overturn any of the ALJ's credibility determinations but reversed instead based upon its conclusion that the record contains insufficient competent evidence to support a conclusion of misconduct.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/05/15