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

KAREN A BERRES, Employee

DOLGENCORP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605137WB


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 three years as a lead worker for the employer, a retailer. Her last day of work was on April 3, 2009 (week 14).

When working the cash register, the employee was required to close the cash drawer when she was away from the register. On March 11, 2009, the employee left her cash drawer slightly ajar and the left the floor to get change. She did this in order to comply with a store directive that employees limit "no sale" transactions. A customer approached the register while the employee was away. The employer gave her a final warning for putting company assets at risk.

The employer has a rule that extra cash must be put into the safe and the safe must be locked. On April 1, 2009, the employee counted down a co-worker's cash drawer. She then placed $214 in excess cash in a deposit bag and left it on a desk in the office. She placed the cash drawer containing $100 in the safe but did not lock the safe. She noticed customers approaching the store through the window and left the office to wait on them. She did not close the office door. She forgot to return to the office to finish putting the money in the safe.

On April 3, the employer discharged the employee for twice putting company assets at risk.

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.

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 first incident was the employee's earnest if misguided attempt to avoid a "no sale" by leaving the drawer open. The employee did not intend to harm the employer's interests but to comply with the directive that she limit "no sales" transactions. In the second incident, the employee simply forgot that she had left the deposit bag on the desk. The employee was distracted and exercised poor judgment in not immediately placing the deposit in the safe. Based on these violations of company rules, the employer made a reasonable business decision to discharge the employee. However, based on the record before it, the commission concludes that the employee did not intentionally disregard the employer's interests. Therefore, her actions do not rise to the level of misconduct.

The commission therefore finds that in week 14 of 2009 the employee was discharged from her employment but that the discharge was not for misconduct connected with her work 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 14 of 2009, if otherwise qualified.

Dated and mailed December 28, 2009
berreka . urr : 178 : 5 MC 691

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not discuss credibility prior to deciding to reverse. The commission accepts the facts found by the ALJ but reaches a different legal conclusion when applying the law to those facts.

cc: Dolgencorp LLC (Goodlettsville, Tennessee)
Dollar General (West Bend, Wisconsin)


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