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

RICKY S ZUELSDORFF, Employee

SIMKO CONSULTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10200414EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2009, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $12,587.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700) issued on July 29, 2009 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefits rights. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed July 30, 2010
zuelsri . usd : 145 : 5  MC 630.14 : PC 740

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision. The employee states that the employer should not have been able to challenge the appeal deadlines. However, the employer discharged the employee for poor performance and asserted, when it filed its petition for commission review, that the employee's performance was poor because he was stealing money from the employer. The employer discovered new information that prompted its decision to appeal this matter. The commission exercised its discretion and remanded this matter for new hearing and decision on the basis of the employer's newly discovered evidence.

The employee further argues that the employer initially wanted him to receive unemployment benefits. While that may well be, the employer clearly changed its mind after learning that the employee had been stealing money from it.

The employee also states that the employer did not speak to him about inventory control except on January 1, 2010, and that sometimes the inventory was short because the employer was shorted on product by its distributor. Even assuming that this is true and that the employee failed to engage in proper product promotions, the employee's actions in keeping cash he collected from customers and completing paperwork which made it appear that the customers still owed the money was deceitful and amounted to misconduct. The employee states that large account receivable balances were not necessarily his fault. However, the employer objected to the employee continuing to provide product to customers who were late with their payments, thus, it initially appeared to the employer that the employee was partly to blame for the excessive amounts owed by these customers. The employer later learned that some of the customers did not owe as much as reflected in the employee's paperwork. The fact that the employe[r] did not initially realize what the employee had been doing and did not take action to correct the situation cannot be viewed as the employer condonation of the employee's actions. The employer had a right to expect that the employee was accurately reporting the accounts receivable.


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uploaded 2010/08/11