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

CHRISTIE M LACEWELL, Employee

MEYERS ANIMAL HOUSE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11001069MD


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 6 years as a manager for the employer, an owner of kennels and a grooming service for dogs. Her last day of work and her date of discharge was January 26, 2011 (week 5).

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.

The employer alleged that the employee stole cash from its place of business. An employer is required to prove an allegation of theft by clear, convincing and satisfactory evidence that the theft was committed by the employee accused. See, Patrick A. Zingale v. Sundance Photo, Inc., UI Dec. Hearing No. 04605830WB (LIRC Mar. 11, 2005); Jill G. Patterson v. Neds Pizza, UI Dec. Hearing No. 00601161MW (LIRC May 4, 2000); Randall G. Ziska v. Ferrellgas, Inc., UI Dec. Hearing No. 970012340FL (LIRC Oct. 10, 1997).

The employer did not present the cash register tape to show the alleged alterations made by the employee. The employer did not present any documentation, e.g., cash register tapes, boarding contracts, kennel cards, receipts, deposit slips, to establish that the employee was pocketing the money from cash transactions. The employer did not present testimony from the coworker who was allegedly involved in a cash transaction on December 18, 2010. The employer's evidence regarding what occurred on December 18, 2010, was hearsay. The employer did not present clear and convincing evidence that the employee stole money from it.

The commission therefore finds that in week 5 of 2011, 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 5 of 2011, if she is otherwise qualified.

Dated and mailed August 26, 2011
lacewch . urr : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on credibility but on the sufficiency of the evidence presented by the employer. The employer's witness's testimony was based on documentation that was not presented at the hearing. Neither the fact finder nor the employee had the opportunity to review that documentation. The events set forth in the ALJ's decision as having occurred on December 18 are based on the adjudicator's summary of what the employer's vice president was allegedly told by a worker. Neither the vice president nor the worker appeared at the hearing. Such multi-leveled hearsay cannot support a finding of misconduct.

The commission notes that under Wis. Stat. § 108.09(6)(c), the commission has two years to set aside any final decision on the basis of mistake or newly discovered evidence. The commission generally finds that a guilty plea or a conviction following a plea of not guilty constitutes "newly discovered evidence." Therefore, if the employer obtains evidence of such guilty plea or conviction of guilt, it may petition the commission to set aside the decision in this case under the two-year statute. A guilty plea or conviction of guilt will not in and of itself establish that the employee committed theft, but it requires providing the employer the opportunity to present additional evidence to support its allegation. See, Koss Corporation v. DILHR and William Gray, Case No. 153-261 (Wis. Cir. Ct. Dane County July 5, 1977).


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