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

LORI L ELMORE, Employee

SPARK SALON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11203793EC


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, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 23, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer disagrees with the ALJ's conclusion that the employer failed to meet its burden of proof. The employer asserts that its suspicion was strong enough to warrant dismissal. However, a claimant who is discharged is eligible for benefits unless the employer establishes that the discharge was for misconduct. Having a good reason for discharging a worker is not the same thing as proving misconduct. The employer in this case failed to present any firsthand evidence about the client who was allegedly overcharged. The employer did not present clear and convincing evidence to establish that the employee took the promotional basket. The employer indicated that the employee signed for it and that the basket was missing. That is not sufficient to establish that the employee stole the basket.

The employer argues that it does in fact have documentary proof that the employee stole from it but was unable to bring this information to the hearing because it is in the hands of attorneys and the police department. Should the employee be convicted of stealing from the employer the employer can inform the commission of that fact. The commission will consider any information provided by the employer and determine whether to take further action. If the employer does provide such information, the commission may set aside its decision and remand this matter for new hearing and decision that would allow the employer to present additional evidence to attempt to establish that the employee stole from it. Generally, an employer is afforded only one opportunity to establish, at a hearing, that the employee was discharged for misconduct. However, theft from an employer is a unique situation. Circuit court decisions have held that, as a matter of public policy, UC benefits should be denied where an employee is found guilty of a criminal charge of theft from an employer, even in cases where the conviction was entered after the UC hearing and no evidence of theft was introduced at the hearing. See Harley-Davidson Motor Co. v. DILHR et al., (Dane County Circuit County, No. 161-226, Nov. 13, 1978); Koss Corp. v. DILHR et al., (Dane County Circuit Court, No. 153-261, July 5, 1977). See also Spector Freight System. Inc. v. DILHR et al., (Dane County Circuit Court, No. 131-057, May 10, 1971).

The employer further asserts that the employer should have been able to present evidence about what it discovered after it discharged the employee. The ALJ exercised his discretion to limit irrelevant evidence at the hearing. If the employer was not aware of something prior to discharging the employee, it cannot form the basis of a discharge for misconduct.

elmorlo . usd : 145 : 6


 

 


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