STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
CYNTHIA M GOES, Employe
SHERATON MILWAUKEE NORTH, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603090MW
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 the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked about six months as a bartender for the employer, a hotel. Her last day of work was March 9, 1998 (week 11). She was discharged on March 14, 1998 (week 11), primarily for violating the employer's closing policies. The employer also considered the employe's attendance. However, while absent on a number of occasions, her absences were due to the illness of her daughter and, as such, there was no evidence that the employe's absences were for other than valid reasons. The employer also claimed that the employe was rude to customers. However, while the employe had been spoken to about her attitude towards customers, the employer had no firsthand testimony to establish that the employe was rude to customers. The primary reason for and the impetus behind the employe's discharge was her alleged violation of the employer's closing policies.
The employe began working for the employer on September 8, 1997, as a bartender. During her orientation and training, she was informed of the hotel's policies regarding the hotel's bar hours, which provide that the earliest that "last call" should be given on a Friday or a Saturday night is 1:00 a.m., and the earliest closing time is 1:30 a.m. If there are a number of people in the bar, the bar should remain open until at least 2:00 a.m. Further, the bartender should make last call first, and then turn the bar's lights up when the bar is actually closing. The guests have notices in their rooms of the bar times. Closing the bar early when there are customers has adverse economic ramifications on the employer.
On the evening of January 31, 1998, the employe was the only bartender working. The employe had the light on at 1:00 a.m., and was telling the bar patrons it was time to go. By 1:20 a.m., the 15 to 20 people that had been in the bar at 1:00 a.m. were gone and the bar was already locked.
The food and beverage director learned that the employe had closed the bar early on January 31, and spoke to her about the matter. Mr. Cerda told her she must stay open until at least 1:30 a.m.
On March 6, 1998, Cerda wrote and posted a reminder to all bar staff regarding bar closing times. This note, which was posted at the bar, indicated the earliest times for last call and closing the bar, depending on the day of the week. The earliest close on Friday and Saturday was 1:30 a.m. and last call was at 1:00 a.m. Mr. Cerda brought the note to the employe's attention. However, despite the explicit directive given by Cerda on February 4, and the March 6, notice, the employe closed the bar before 1:30 a.m. on Friday, March 6. At 1:00 a.m. on March 6 the employe had the lights on and was telling customers it was time to go. There were 15 to 20 customers in the bar and they did not appear to be happy about the early closing. The customers were so unhappy that the security guard felt the need to apologize to two couples for the bar closing early that evening.
Mr. Cerda learned that the employe had again closed the bar early. Mr. Cerda met with the employe on March 14, 1998 (week 11) at which time she was informed that she was being terminated for failing to comply with the bar's closing hours, her general attitude, and her attendance.
The issue to be decided is whether the employer discharged the employe for misconduct connected with her work.
In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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."
The employe closed the bar early after receiving explicit instructions not to do so. Closing early was bad customer relations as hotel guests were led to believe the bar would be open later. Further, closing early, particularly where there were 15 to 20 customers in the bar was clearly contrary to the employer's economic interests. The employe offered no explanation for closing the bar early. The employe basically pushed paying customers out the door before the established closing time which made for unhappy customers. The employe's actions constituted an intentional and wilful disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employe.
The commission therefore finds that in week 11 of 1998 the employer discharged the employe for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employe was paid benefits in the amount of $3,045.00 for weeks 12 through 36 of 1998, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived.
Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.
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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 11 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $3,045.00 to the Unemployment Reserve Fund.
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: December 23, 1998
goescy.urr : 132 : 3 MC 640.03
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge indicated that he did have some reservations regarding the security guard's testimony. However, the administrative law judge also indicated that he had no reason to believe that the security guard was being dishonest in his testimony. The commission credits the testimony of the security guard particularly in light of his contemporaneous notes regarding the employe's activities.
cc:
ATTORNEY BARRY L CHAET
BECK CHAET MOLONY & BAMBERGER SC
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