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

KAREN R BERGERON, Employee

LONG HORN RED LOBSTER
OLIVE GARDEN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12601959MW


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 the employer, a restaurant, for about two years as a server. Her last day of work was January 17, 2012 (week 3).

The employer requires employees to meet with a manager each day upon arriving for work and before departing from work. A manager ensures that each employee receives proper attention and feedback from management by completing and initialing a TIP (talk into position)/TOP (talk out of position) card. At the end of her shift on January 17, 2012, the employee scribbled in the box where her manager's initials would have appeared on her TIP/TOP card. The manager who should have initialed the employee's card discovered what the employee had done and discussed the matter with the employee. The employee admitted that she had scribbled initials in the manager's box, indicating that a manager had spoken to her at the end of her shift, but did not offer any explanation for her actions.

The employer has a policy against the falsification of company documents. The employee received a copy of the policy, which provides for immediate discharge. The employee's manager discussed the employee's actions with the restaurant's general manager and with the corporate employee relations office. The corporate office supported a decision to discharge the employee. The restaurant's general manager took care of the discharge.

Department records show that the employee initiated a claim for unemployment insurance benefits on January 20, 2012, and reported a discharge. She received partial benefits for week 3 of 2012 and full benefits for weeks 6 through 9 of 2012. The employee reported wages and resumed receiving partial benefits in week 10 of 2012.

In a determination dated February 17, 2012, the department allowed benefits based on the employer's failure to provide information concerning the employee's separation during its fact-finding investigation. The employer filed a timely appeal.

A hearing was held on March 20, 2012 (week 12). The employer contended that the employee was discharged for misconduct connected with her employment because the employee falsified a company document. The employer's sole witness at the hearing was the manager who had discovered that the employee scribbled initials in the manager's box on her TIP/TOP card and had discussed the matter with the employee. The employer's witness was not present when the employee was discharged and did not bring a copy of any discharge paperwork. The employee did not appear at the hearing.

The ALJ found that there was no competent evidence in the record to support the employer's claim that the employee was discharged for falsifying a company document. He resolved the entire matter on that basis without reaching the question of misconduct. Benefits were allowed. The employer, again, appealed.

The initial issue before the commission is whether there was sufficient evidence in the record to find that the employer discharged the employee for her actions on January 17, 2012.

The employer presented unrebutted testimony at the hearing that, on January 17, 2012, the employee forged her manager's initials on a company document, that the manager told the employee that she would be speaking with the restaurant's general manger about the situation, that the manager spoke with the general manager and with the corporate employee relations office, that someone from the corporate office told the manager they would support a discharge, that the manager relayed that information to the general manager, that the general manager said she would take care of it, and that, as of January 21, the employee no longer worked at the restaurant. Department records show that the employee initiated a claim for unemployment benefits on January 20 and reported a discharge.

Admittedly, the employer's witness only presented hearsay evidence concerning the employee's discharge. However, hearsay evidence is admissible in an unemployment hearing and may be considered, as long as a decision is not based entirely on hearsay.

The commission is satisfied that the hearsay evidence in this case concerning the employee's discharge, when considered together with other nonhearsay evidence in the record, allows a reasonable inference to be drawn that the employer discharged the employee for her actions on January 17, 2012.

The next issue before the commission is whether the employee's actions on January 17 constituted misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the Supreme Court of Wisconsin said, in part:

[T]he intended meaning of the term "misconduct" . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

The employee admitted forging a manager's initials on a company document. She did not provide an explanation for her actions. The employee's conduct in placing initials in the manager's box on her TIP/TOP card was intentional and dishonest. The employer's policy provided for immediate discharge of any employee guilty of falsifying documents. The employee's actions demonstrated an intentional and substantial disregard of the standards of behavior the employer had a right to expect of the employee and, as such, constituted misconduct. Because trust is such an essential component of the employment relationship, the commission and the courts have been consistent in holding that an employee's dishonesty in the course of this relationship supports a conclusion of misconduct. See, e.g., Cera v. Fine Print Graphics Inc., UI Dec. Hearing No. 98603298MW (LIRC Oct. 15, 1998); Mischler v. Harbor Senior Concepts LLC, UI Dec. Hearing No. 06401778GB (LIRC Nov. 25, 2006).

If an employee is discharged from employment with an employer due to actions that constitute misconduct connected with the employment, Wis. Stat. § 108.04(5) provides that the employee will not be eligible for any unemployment benefits based on wages earned from work prior to the discharge for that employer and will only be eligible for benefits based on wages earned from work for other employers when at least seven weeks have elapsed after the end of the week of discharge and the employee has earned wages in covered employment after the discharge of at least 14 times the employee's applicable weekly benefit rate.

Department records show that the employee was paid benefits totaling $808 for weeks 3 through 13 of 2012. The employee also was paid benefits totaling $606 for weeks 14 through 27 of 2012. Given that the employee was discharged for misconduct connected with her employment, she was not eligible for or entitled to those benefits.

The employer conceded at hearing that it failed to provide correct and complete information to the department during its fact-finding investigation. Therefore, pursuant to Wis. Stat. § 108.04(13)(c), benefits totaling $808 paid to the employee prior to the date of the appeal tribunal decision will remain charged to the employer. The employee was not at fault for the payment of those benefits and is not liable for their repayment. She reported to the department that she had been discharged and provided all relevant information to the department during its fact-finding investigation.

The final issue before the commission is whether recovery of benefits totaling $606 paid to the employee subsequent to the date of the appeal tribunal decision must be waived. Wisconsin Stat. § 108.22(8)(c) provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment of benefits subsequent to the date of the appeal tribunal decision results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e). Consequently, the overpayment may not be waived.

The commission therefore finds that in week 3 of 2012 the employee was discharged for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,414, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Of that amount, $808 was not overpaid to the employee and remains charged to the employer. The employee must, however, repay the sum of $606 to the department, pursuant to Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2012 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. Benefits totaling $808 received by the employee for weeks 3 through 13 of 2012 are not overpaid and will remain charged to the employer due to employer fault. The employee is required to repay the sum of $606 to the Unemployment Reserve Fund for benefits received for weeks 14 through 27 of 2012.

The initial Benefit Computation (Form UCB-700) issued on January 20, 2012, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed August 30, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the ALJ before reversing his decision, because its reversal is not based upon a differing view as to the credibility of witnesses. Instead, the commission reversed his decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.
Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account or, for a reimbursement employer, to the fund's administrative account.

Repayment instructions for the amount that must be repaid will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayments of unemployment and other special benefit programs that are due to this state, to another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


bergeka . urr : 152 : 6

cc: GMRI Inc.

 


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