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

LORINDA P DAVIS, Employee

OSHKOSH PLAZA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402503AP


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. On January 8, 2010, the commission remanded this matter for further hearing. Further hearing was held on March 19, 2010.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and at the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a cashier for about five months for the employer, a liquor store. Following a police investigation on February 2, 2009, the employee pled no contest to charges of theft of property under $500.00 from the employer and paid a fine. She was not scheduled to perform work for the employer thereafter. In a letter from one of the owners, dated February 10, 2009, the employee was informed that she terminated her employment "by indulging in unethical behavior," for stealing beer on January 24 and for other reasons.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employer contended that the employee was discharged by one of the owners at the police station on February 2, 2009 (week 6). It was the employee's position that she quit her job that day. In the employee's version of facts, she voluntarily gave one of the owners her key to the store while at the police station as an indication that she had quit. However, the employer's owner, who was at the police station on February 2 with the employee gave more credible testimony that he told her not to return to work while at the police station and that she then gave him the store key. The part-owner's instructions to her not to return to work in the context of the situation at the time amounted to a discharge.

The employee was discharged for stealing money from the register, not paying for beer, and giving a coworker cigarettes for free. The employee maintained that she did not take money out of the till. She denied failing to pay for the beer. The employee also maintained that the coworker charged the cigarettes and paid for them later.

The commission remanded this matter to allow the employer the opportunity to present visual evidence and documentation to support its claim. Due to a change of ownership and difficulties related to software the employer was unable to present register tapes or a video of the employee's activities to support its allegations. The employer did not prove theft by clear and convincing evidence.

The commission therefore finds that in week 6 of 2009, the employer discharged the employee but 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 6 of 2009, if she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 25, 2010
davislo : 132 : 5 PC 740 MC 630.14 PC 714.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the original hearing regarding her impressions of witness credibility and demeanor. The ALJ's finding of misconduct was based on the fact that the employee pled no contest to stealing from the employer. The commission has previously stated that "criminal pleas, and even criminal judgments, are of no value to employers in proving misconduct under Wis. Stat. § 108.04(5)." Albrecht v. Farm & Fleet of Monroe Inc., UI Dec. Hearing No. 05003647JV (LIRC Nov. 28, 2007).


 

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