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

LORRIE J WILBER, Employee

SPOONER VETERINARY CLINIC SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201975EC


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 for about nine years, most recently as an office manager for the employer, a veterinary business. Her last day of work was August 31, 2006 (week 35), when she was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

The employer had a main office in Spooner, Wisconsin. The employee worked at an office located in Hayward, Wisconsin. She worked on Tuesdays and every third or fourth Saturday in Spooner. Occasionally, she worked other days of the week in Spooner.

In mid-August, the supervisor received a complaint that the employee was not working all of the hours that she reported. The supervisor began reviewing computer reports of time records and discovered that the employee had changed her clock time to add 25 minutes. The supervisor then looked at other transactions in the computer and noticed a deletion of a cash sale by a worker.

On August 18, 2006, the supervisor informed the employee that she suspected the other worker of entering a transaction, receiving cash, deleting the transaction and pocketing the cash. The supervisor interviewed the other worker. Based on that worker's demeanor, the supervisor concluded that the worker had not stolen cash from the employer. The supervisor reviewed the computer record again and noticed that the employee's password had been used shortly before and after the questionable transaction. The supervisor began to look more closely at the deletions entered under the employee's password. The supervisor suspected that the employee may have used the co-worker's password to delete the transaction.

The supervisor determined that the employee had more deletions than her co-workers. The employer had inventory problems and did not know how much, if any, product was missing. The employer discharged the employee for theft of cash sales.

The issue that must be decided is whether the employee's discharge was for misconduct connected with her work.

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."

Much of the employer's case involved discussions with customers who did not appear at the hearing, and there was no firsthand evidence that the transactions deleted by the employee were actually valid sales to customers. The employee's co-workers also had deletions, although they had fewer than the employee. The employer argued that passwords were kept secret and that workers were not supposed to share their passwords. The employer then argued, somewhat inconsistently, that it suspected that the employee deleted a transaction using a co-worker's password. Further, if the employee had access to the passwords of her co-workers, she would be likely to use the passwords of her co-workers who were working on the days in question to make any questionable transactions. In addition, if the employee knew her co-worker's password, it is also reasonable to assume other workers knew the employee's password and could have used it to delete transactions. The employer initially suspected that co-worker of stealing money, but was convinced, after discussion with the co-worker and observing that co-worker's demeanor, that she did not steal cash from the employer. This credibility determination was important because the circumstantial evidence is insufficient alone to establish that the employee took money from the employer. The employer did not have any specific amount of inventory that was missing that would correlate to the employee's deletions. In addition, the employer did not present the testimony of any customers that on any specific day they paid cash for and received a product that they did not return. The employer's practice manager testified that she did not check the records of all cash handlers, only those with positions similar to that of the employee. The employer's accusation is serious and the employer is required to establish by clear and convincing evidence that the employee stole money from it.

The commission therefore finds that in week 35 of 2006, the employee was discharged, but that her discharge was not for misconduct connected with her work for the employer, 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 35 of 2006, if otherwise qualified

Dated and mailed April 27, 2007
wilbelo . urr : 145 : 1  MC 630.14

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ prior to reversing her decision. The ALJ did not find the employee credible because she did not have a good explanation as to how any of these questionable transactions occurred. The ALJ found this to be a difficult case, and did not have any specific demeanor impressions of the witnesses. The commission did not find the employer's evidence sufficient to support a conclusion that the employee was deleting transactions and keeping the cash from those transactions. While the employee may not have had a good explanation for the deleted transactions, it was the employer's burden to establish that it discharged the employee for misconduct, and it needed to present clear and convincing evidence that the employee was stealing from it.

cc:
Attorney Owen R. Williams
Attorney Stuart J. Krueger


Appealed to Circuit Court.

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