GORDON F DE WANE, Employee

SERVICES PLUS, 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 six months for the employer, a contract packaging and manufacturing company, at the end of which he was a second shift traffic coordinator.

The employee was discharged on April 6, 2007 (week 14), for allegedly phoning coworker Kendra Bishop (Bishop) a few minutes before the beginning of his shift and asking her to punch him in to work so that he would not incur attendance points for being tardy.

The issue is whether the employer sustained its burden to prove that the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee called the office on April 6 as he was driving to work to provide notice that he would be a few minutes late, and coworker Alex answered the phone. The employee asked to talk to Bishop. Joking, as he and Bishop often did, he asked Bishop to punch him in. During this conversation, he told Bishop he was joking, he knew she could not punch him in, and he would be there "in a minute." He arrived at work four minutes late that day and punched himself in at that time. The employee's supervisor Jason Engebose (Engebose) called him into a meeting later on April 6, and asked him whether he had called Bishop and asked her to punch him in. He told Engebose that he had, but did not tell him he had been joking because he was so surprised by the inquiry. Engebose then discharged the employee.

The employer's sole witness was Sandi Hildahl, its human resources manager. Through Hildahl, the employer established only that Bishop reported to Hildahl that the employee had asked her to punch him in to work.

The administrative law judge (ALJ), apparently concluding that the employee would not have asked to speak to Bishop unless he believed she would be willing to punch him in, and would have told Engebose he had been joking if he actually had been, did not credit the employee's testimony that he had been joking, and concluded as a result that the employee had engaged in misconduct.

The commission disagrees. An ALJ is only required to make a credibility determination if there is conflicting competent evidence, or if it appears certain evidence may be inherently incredible. Here, the employer, even though it would have had the opportunity to do so if it had called Bishop as a witness, failed to rebut the employee's testimony that he had been joking and had told Bishop so. Consequently, there is no conflicting competent evidence in this regard. Moreover, this testimony by the employee is not inherently incredible.

As a result, the employer failed to sustain its burden to prove misconduct by showing that, as alleged, the employee, with the intent to compromise the integrity of the employer's time accounting system, asked Bishop to punch him in to work before he had actually arrived at the workplace.

The commission therefore finds that in week 14 of 2007, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7), but was discharged and his discharge was not for misconduct 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 14 of 2007, if otherwise qualified.

Dated and mailed August 17, 2007
dewango . urr : 115 : 2  MC 697

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses based upon demeanor, but instead upon the commission's conclusion as to what the unrebutted evidence of record in fact established.

 

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uploaded 2007/08/20