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

YAKEE BANKS, Employee

VALUE CITY FURNITURE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602749MW


On April 19, 2007, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on May 15, 2007 in Milwaukee, Wisconsin before a department administrative law judge. On May 18, 2007, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately 2 years as a salesperson for the employer, a retail furniture concern. The employer discharged the employee on March 14, 2007 (week 11) for allegedly giving away a small ceramic piece in order to close a sale, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that the competent evidence is insufficient to establish that the employee engaged in the conduct alleged, and so reverses the appeal tribunal decision.

On March 3, 2007, the employee sold approximately $1,100 worth of furniture to a customer. On March 13, following questioning by the employer's general manager, the customer returned the ceramic piece to the store, with apologies. This is the entirety of the employer's non-hearsay evidence about the matter.

The employer's hearsay evidence is testimony from the general manager of the customer's statements to him. The general manager testified that the customer told him the employee had given the customer the ceramic piece as an incentive for the transaction and had instructed the customer to "keep quiet" about that aspect of the transaction.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect. Improperly giving away items in order to close sales deals meets this definition. It also is a form of theft and, as such, a violation of the criminal law. In the civil and administrative context, such matters must be proved by the so-called middle evidentiary burden, substantial and credible evidence (as opposed to the usual civil and administrative evidentiary burden, a preponderance of the evidence). Given that the entirety of the evidence of wrongdoing by the employee is hearsay, the commission concludes that the employer has not met its evidentiary burden. In addition, the employee consistently and strenuously denied having given the customer the ceramic piece.

The commission therefore finds that, in week 11 of 2007, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 11 of 2007, if he is otherwise qualified.

Dated and mailed August 27, 2007
banksya . urr : 105 : 1 PC 714.03

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge found the employee less credible than the employer, on the basis of the employee's testimony that he could not recall the customer he sold the furniture to on March 3. The commission agrees that, in certain contexts, a witness's being "unable to recall" certain matters, will indicate evasiveness on the witness's part. In this case, though, the employee was responding to the administrative law judge's question whether the employee recalled the customer. The employee thus was doing no more than answering the question asked by the administrative law judge, and that does not lead to the inference of evasiveness found by the latter.

cc: Value City Furniture (Greenfield, Wisconsin)


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uploaded 2007/09/10