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


RENEE M CERA, Employe

FINE PRINT GRAPHICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603298MW


On May 12, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. As a result, benefits were denied. The employe filed a timely hearing request and a hearing was held before an appeal tribunal. On June 12, 1998, the appeal tribunal issued a decision reversing the initial determination. As a result, benefits were allowed. The employer has filed a timely petition for commission review.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a printing business, for about two and a half years, most recently as office manager. Her hours of work were from 8:00 a.m. until 4:30 p.m., and her last day of work was April 21, 1998 (week 17).

On Monday, April 6, 1998, the employe called the employer's manager, Nancy Baggett, and stated that she would not be coming in to work because she had some personal things to do. Ms. Baggett told the employe she was really needed that day, and the employe responded that she would try to be in in the afternoon. The employe, however, did not report for work that afternoon.

The next day the employe reported to work and told Ms. Baggett that her grandmother had died on Saturday and that her absence on Monday had been to attend her grandmother's funeral. Ms. Baggett, who considered the employe to be generally untruthful and was also dissatisfied with the employe's attendance record, believed that a burial would not take place in two days and questioned the employe's explanation for her absence. A day or two later Ms. Baggett asked the employe to provide some sort of verification for her absence. The employe indicated that she could bring in a "prayer card." Ms. Baggett asked the employe for the prayer card on several occasions thereafter, but on each occasion the employe stated she forgot it. On April 16 Ms. Baggett again reminded the employe about the prayer card, and the employe indicated she was going home for lunch and would get it. Later that day the employe gave Ms. Baggett a copy of the prayer card, but did not show her the original.

The following day Ms. Baggett telephoned the funeral home, church, and cemetery that were listed on the prayer card, all of which indicated that the information on the prayer card was incorrect. Ms. Baggett was told by a representative at the cemetery that there was no record of a burial or internment for anyone by the employe's grandmother's name during the entire month of April. (1)

On April 21 (week 17) Ms. Baggett told the employe that she contacted some of the listings on the prayer card and learned that they were untrue. The employe did not deny that the information on the prayer card was incorrect. However, the employe requested an opportunity to find out what the problem was and bring in adequate proof. Ms. Baggett declined this request, stating that it was time for the employe to move on.

The issue to be decided is whether the employe was discharged due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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."

At the hearing the employe testified that she did not actually attend her grandmother's funeral, but instead went to the cemetery that day in order to pay her last respects. The employe explained that she had not spoken to anyone on her grandmother's side of the family in ten or fifteen years and did not feel comfortable going to the funeral service because she feared a confrontation. She stated that she went to the cemetery after the service was over, got there at about 12:15 or 12:30 p.m., then left at 12:30 or 12:45 p.m. and went back home. When asked why she needed to miss an entire day of work in order to make a fifteen minute visit to the cemetery over the noon hour, the employe testified that she took the morning off in order to prepare how she would react at the funeral and to decide if she even wanted to go, and that she did not return to work thereafter because half the day was over and there was only an hour remaining in which she could have worked.

The employe testified that a few days after the funeral Ms. Baggett questioned her about where she was and asked her for proof. The employe originally testified that Ms. Baggett asked her three times for the prayer card, but subsequently stated that Ms. Baggett did not ask her for the prayer card until April 16. The employe maintained that she immediately asked a cousin to send her a copy of the prayer card and that her cousin sent it out that day. The employe stated that she received the prayer card in the mail the following day, made a copy for the employer, and returned the original to her cousin.

The employe testified that, subsequent to her discharge, her cousin told her that she had done some researching and that there were, indeed, problems with the prayer card. For example, the date of death was not April 4, as shown on the prayer card, but March 28, and the name of the funeral service director listed on the card was incorrect. The employe's explanation for the latter mistake was that there were actually two funerals held, apparently with two different funeral directors, so that the two sides of her grandmother's family could avoid a confrontation.

The commission considers the employe's testimony unworthy of credence. The employe admits that there are errors on the prayer card she submitted to the employer, and the employe's explanation for those errors strains credibility. The commission considers it unlikely that the employe's grandmother's funeral took place ten days after her death, and finds it suspicious that the erroneous date of death appearing on the prayer card coincides with the employe's statement to the employer, before she ever saw the prayer card, that her grandmother had died on April 4. The commission is also unpersuaded by the employe's explanation that her family held two separate funerals using two separate funeral directors and questions why, if this was true, the employe did not mention this fact to the employer when it originally challenged the information on the prayer card. In addition, the employe did not disagree with the employer's testimony that the cemetery listed on the prayer card was incorrect and did not offer any explanation for this error or explain what cemetery she, in fact, visited on the day in question. Finally, the employe was unable to recall the last name of the cousin who allegedly notified her of her grandmother's death and supplied her with the prayer card and, when asked why she did not bring her cousin to the hearing to testify on her behalf, maintained that she could not do so because she has no contact with that side of the family.

The many inconsistencies and implausibilities in the employe's testimony lead the commission to believe that no funeral was held and that the employe fabricated the excuse and the "prayer card" to justify her actions in taking a day off at a time when she was needed at work. An employer has a right to expect honesty from its employes, and the commission concludes that the employe's actions in deliberately falsifying her reason for an absence evinced a wilful and substantial disregard for the employer's interests or the standards of conduct the employer had a right to expect of her.

The commission, therefore, finds that in week 17 of 1998, the employe was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 17 through week 39 of 1998 in the total amount of $4,155, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1998 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $4,155 to the Unemployment Reserve Fund. Then initial benefit computation (UCB-700) issued on April 21, 1998 is set aside. If benefits become payable based on work performed for other covered employers a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: October 15, 1998
cerare.urr : 164 : 3 MC 605.093  MC 630.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding the credibility and demeanor of the witnesses in this matter. The administrative law judge indicated that the employe seemed sincere about the situation with her family and that he did not think she would have the motivation to manufacture a story about a funeral, given that her job was not in jeopardy at the time. However, while it is true that the employer did not press her for details about her absence and that the employe volunteered that she had been at a funeral, the commission believes that the employe did so in order that the employer would accept her decision to be absent at a time when she had been told she was needed at work. As set forth in greater detail in the body of the decision, the commission does not find credible the employe's explanation that she was attending a funeral.


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Footnotes:

(1)( Back ) At the hearing the employer attempted to present letters from the church, cemetery, and funeral home in support of its contentions, but the administrative law judge refused to admit those documents into the record on the ground that they were hearsay. However, the administrative code does not completely prohibit the consideration of hearsay. Rather, it provides that no issue may be decided solely on the basis of hearsay evidence. Wis. Admin. Code § DWD 140.16(1)(emphasis added). The commission believes that the employer's letters would have had reasonable probative value and, in the absence of any objection from the employe, were properly admissible.