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

JASON D SCHMITTINGER, Employee

PIGGLY WIGGLY SUPERMARKET NO 93, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10007460MD


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 eligible for benefits beginning in week 46 of 2010, if otherwise qualified.

Dated and mailed July 22, 2011
schmija . usd : 132 : 1 MC 630.14 : MC 630.16

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employer discharged the employee but not for misconduct connected with his work for the employer. The employer asserts that that while the ALJ found that the employee "forgot to pay" for the muffin, she heard the employee say, "I stole it." The synopsis reflects that the employee testified,

"The muffin that I ate cost $.89. I have never done that in the past. I didn't have time to eat before I left and I was hungry. I was going to pay for it when the store opened, but I was caught up in work and it slipped my mind. I made an honest mistake that day."

Synopsis at 3.

The ALJ's finding is therefore supported by the employee's testimony. The fact that the employee knowingly violated an employer policy does not automatically lead to a finding of misconduct. The commission is unaware of any "matrix" used by the hearing offices to determine theft and/or misconduct. The facts of each case determine whether theft and/or misconduct have been established. The commission considers it appropriate when deciding whether theft and/or misconduct have occurred to take into consideration, among other things, the value of the item(s), the number of items, the length of employment, the employee's disciplinary history or lack thereof, and the employee's intent.



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