CARRIE K MOORE, Employee

OCB RESTAURANT CO, Employer

On October 28, 2011, the Department of Workforce Development (department) issued an initial determination which found that the employee was discharged for misconduct connected with her employment. Benefits were denied. The employee filed a timely appeal, and a hearing was scheduled before an administrative law judge (ALJ) on November 29, 2011. The ALJ issued an appeal tribunal decision on November 30, 2011, affirming the department's initial determination.

The last day to timely petition the appeal tribunal decision was December 21, 2011. The employee's petition for review was postmarked February 4, 2012, and received by the department on February 6, 2012.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence in the record. Based on its review, the commission makes the following:

LATE PETITION

The first issue to be decided is whether the employee filed a timely petition for commission review and, if not, whether her failure to do so was for a reason beyond her control. If the timeliness issue is resolved in the employee's favor, the commission has the jurisdiction to consider the merits of the case. If the case is resolved unfavorably toward the employee, the commission lacks jurisdiction and the employee's petition for commission review is dismissed.

The employee explains that her petition was filed late because she never received the appeal tribunal decision. The employee called the Milwaukee Hearing Office in early February 2012 to inquire as to the status of her case. At that time, the employee was informed of the adverse decision. The employee explains that she did not call earlier because she had been continuously allowed to file weekly claims for benefits. The employee's written appeal was dated February 3, 2011, and mailed to the Milwaukee Hearing Office the following day. Her appeal was then forwarded to the commission as a petition for review.

In light of the employee's explanation that she never received a copy of the appeal tribunal decision and her prompt response once she became aware that it had been issued, the commission is satisfied that the employee established that it was beyond her control to have timely filed her petition, within the meaning of Wis. Stat. § 108.09(6)(a). Therefore, the employee's petition on the merits will be considered.

DISCHARGE

The employee worked for more than two years as a cashier for the employer, a buffet restaurant chain. Her last day of work was September 14, 2011. The employer discharged her on September 21, 2011 (week 39).

A discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Wis. Stat. § 108.04(5). Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The issue before the commission is whether the employee's actions, which led to her discharge, constituted misconduct connected with her employment.

The employer offers discounted prices on buffet meals to employees, senior citizens, and children. The employer has written rules that specify how those customer discounts are to be applied. On September 10 and 11, 2011, the general manager found three customer receipts in the dining room that appeared suspicious. They appeared suspicious because the receipts did not match the customers who were seated at the tables. Two of the receipts were for a regular customer who had been given an hourly employee meal discount, even though he was not an employee. The third receipt was for two senior citizen customers, one of whom was charged for an 11-year-old's meal.

When asked, the employee admitted giving the regular customer an employee discount. She explained that he was the boyfriend of one the managers. About a year earlier, the manager told the employee to give him the discount, and the employee continued to do so whenever he came in to the restaurant. With respect to the senior citizen customers, the employee explained that she had made a mistake in charging one for a children's meal, she did not have a manager correct the error immediately, and neglected to have the correction made later in the day.

The employer has a progressive discipline policy but retains the right to discharge employees immediately for some offenses. Among them is improper procedures in cash handling, including ringing up sales inaccurately. Based on the employee's admission that she had violated the employer's cash handling policy, the employer discharged her. The employee had not been subject to previous discipline. The general manager decided that immediate discharge was warranted because the employee gave repetitive discounts, defined by the general manager as three, over a two-day period. The employer viewed the issue as one of trust.

The employee testified without rebuttal that she had been giving the manager's boyfriend a discount for over a year and had been reporting it on her nightly media reports. The employee was never informed that her actions were unacceptable and placed her job in jeopardy. The employee also testified without rebuttal that other cashiers routinely gave people they know discounts and that the only discipline they received were verbal warnings. The employee also testified without rebuttal that another worker snuck people into the restaurant through the back door, and they ate for free. That worker received a verbal warning and a written warning before being discharged.

The employee contends that, after having worked for the employer for more than two years without any write-ups or verbal warnings, immediate discharge was not warranted. The commission agrees.

The conduct for which the employee was discharged reflected poor judgment on her part, but it did not evince such a willful, intentional, or substantial disregard of the employer's interests as to constitute misconduct. The facts show no intent to deliberately harm the employer. The employee did not gain personally from her actions and believed that she was providing good customer service. Even where rule violations are demonstrated, as here, misconduct is not shown absent an intent by the employee to harm the employer's interests. Adams v. Hotel Pfister, UI Dec. Hearing No. 99602534MW (LIRC March 2, 2000).

Furthermore, in all but the most serious of offenses, the employer has an obligation to warn an employee, thus giving the employee an opportunity to improve prior to being discharged, before a finding of misconduct will be made for unemployment insurance purposes. Burch v. Sylvias Eagle Express, Inc., UI Dec. Hearing No. 01606474MW (LIRC Dec. 11, 2001). In this case, if the employer believed that the employee's cash handling errors were sufficiently egregious to warrant immediate discharge, it would not have required three such errors before moving to discharge the employee.

The commission therefore finds that in week 39 of 2011 the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The employee's petition for review is accepted. The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2011, if otherwise qualified.

Dated and Mailed April 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employee attempted to present additional facts through her petition for review. However, the commission cannot consider factual assertions made in the petition for review which were not also made at the hearing. The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission shall be based on the record of the case, including the evidence previously submitted at hearing before the department. Therefore, the commission did not consider the factual assertions in the employee's petition which were not also made at the hearing. The commission based its review solely on the testimony and documents presented at the hearing before the administrative law judge.

The commission did not discuss witness credibility with the ALJ who held the hearing, because it did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

mooreca . urr : 152 : 1

cc: Old Country Buffet

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uploaded 2012/09/25