Wis.LIRC UC Decision: Choudoir, Justin - July 30, 2007 - MC 630.14- Dishonesty - Stealing - employer suspected employee but failed to prove theft by clear and convincing evidence, and had no non-hearsay evidence employee came to work intoxicated; MC 665.08 -Relation of offense to discharge - Acts committed or discovered after discharge - employer had already decided to fire employee before meeting, so information learned in that meeting cannot have been the basis for the discharge

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

JUSTIN J CHOUDOIR, Employee

VAN ZEELAND OIL CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400611AP

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 eight months as a cook for the employer, a bar and restaurant. His last day of work was on January 19, 2007 (week 3).

On January 15, 2007, the general manager was told that on January 14 the employee had reported to work intoxicated. On January 15, the employee was given a written warning. He denied the allegations.

The employer hires an independent audit business to audit its inventory. On January 18, 2007, the general manager was informed that based on the independent audit company's audit, there was a bottle of Absolut vodka and 29 bottles of beer missing on January 14; and 21 bottles of beer missing on January 17. The vodka and some of the beer were missing from the downstairs storage area. It was determined that the employee was the only worker that had worked on both January 14 and 17.

On January 19, the general manager questioned the employee. Prior to the meeting that day, the employer had determined to discharge the employee for the possible theft based on the coincidence of timing. The employee denied taking the vodka and beer. However, he told the general manager that a few days earlier another worker had told the employee that he had taken a bottle of vodka. When confronted, the other worker denied taking the vodka. The employee was discharged for possible theft, for not reporting a theft and for reporting to work intoxicated.

The issue to be decided is whether the employee was discharged for misconduct connected with his employment.

The employer did not establish that the employee committed the theft of the vodka or beer. It suspected it due to the timing and the previous allegation that the employee was drunk. However, an employer must demonstrate by clear and convincing evidence that a theft was committed. It had no clear evidence against the employee. Therefore, no misconduct is established on these grounds. The employee also denied coming to work intoxicated and the employer had no non-hearsay evidence that he did so. Finally, the employer alleged that the employee was discharged for failure to report another worker for potential theft. However, the employer had decided to discharge the employee before this issue came to its attention. The employer testified that it made the decision before the meeting. Since the employer received the information after it had decided to discharge the employee on other grounds, it cannot logically be the basis for the discharge. Based on the foregoing, the commission concludes that the employer has failed to establish that the employee's discharge was for misconduct connected with his employment.

The commission therefore finds that in week 3 of 2007, the employee was discharged by the employer but that the discharge was not for misconduct connected with his 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 3 of 2007, if he is otherwise qualified.

Dated and mailed July 30, 2007
choudju . urr : 178 : 1 MC 630.14 MC 665.08

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness demeanor and credibility with the ALJ prior to reversing. The commission agrees with the ALJ's factual findings. However, it concludes that the decision to discharge the employee was made before the employer learned that the employee had not previously notified it of another employee's potential theft. As a matter of law, this conduct cannot form the basis of a finding of misconduct.

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uploaded 2007/07/30