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

DAVID R ROESSLER, Employee

WICKCRAFT CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08005323MD


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 a year and forty weeks as a sales consultant for the employer, a manufacturer of piers, boat track systems and walkways. His last day of work was on November 12, 2008 (week 46).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

On April 8, 2008, the employer warned the employee about purchasing in-room movies while he was on a sales trip to Michigan. The employer's policy prohibits personal use of the employer's credit card.

On October 16, 2008, the employer warned the employee about charging some food and drinks for himself and his wife. His wife has picked him up at the airport after a business trip. The employee was hungry, so he stopped on the way home for an appetizer and drinks and charged this to the employer's credit card.

On November 5, 2008, the employee purchased cigarettes when he bought gas and used the employer's card for both purchases. The next day, he gave the office manager the receipt for reimbursement, but circled the cigarette purchase and gave the office manager cash to cover the cigarette purchase.

On November 12, 2008, the vice president discharged the employee, informing the employee that things were not working out and that they were going in a different direction. The employee asked why he was being discharged, and the vice president indicated that he wanted no further discussion of the matter.

The employer, at the hearing, stated that the employee was discharged because of the November 5, credit card use. The employer indicated that he never discussed this matter with the employee. The commission does not find the employer's assertion that the employee was discharged because of his credit card use to be credible. If the employer had intended to discharge him for this reason it should have said so, rather than vaguely informing the employee that they were going in a different direction, and refusing to answer the employee's specific questions about the discharge. Further, where the employer has given the employee a specific reason for discharge, the employer is precluded from advancing other reasons in an attempt to later justify the discharge. Marine National Exchange Bank v. DILHR and Jenkins, Dane County Circuit Court Case No. 148-328 (May 24, 1976); Arlene N. Jacobs v. Absolutely Beautiful Cleaning, Inc., UI Hearing Decision No. 97608102MW (LIRC October 15, 1998).

Under the circumstances presented in this case, the employer has failed to establish that the employee was discharged for misconduct connected with his work.

The commission therefore finds that in week 46 of 2008, the employee was discharged but that his discharge was not for misconduct connected with the 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 46 of 2008, if otherwise qualified.

Dated and mailed April 30, 2009
roessda . urr : 145 : 6 MC 605.09  MC 665.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He ALJ said that it was his belief that the employee understood the employer's rules, in particular after the alcohol incident. With respect to the reasons that the employer discharged the employee, the ALJ found that the employer was a reluctant participant in the hearing, but did believe the employer when it indicated that it discharged the employee because of his credit card use. The commission disagrees with the ALJ's credibility determination for the reasons set forth in its decision.

cc: Attorney Marilyn Townsend


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