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


ANTHONY A SILVIA, Employe

AMERITECH INFORMATION SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606805MW


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 employe worked for about four years as an account manager for the employer, a telecommunications business. His last day of work was September 11, 1998 (week 37), when he was discharged from his employment.

The issue which must be determined is whether the employe's actions, for which he was discharged, constituted misconduct connected with his employment.

The employe's work duties included obtaining and processing sales orders for customers. These orders were generated through telephone discussions directly with the customer. After the request for service was made, the employe submitted that request for service to another department. The department processed the order and returned the information to the employe. He then calculated the service charge, compiled his orders in a report, and submitted that report to the employer as a record of his sales activities. His rate of compensation was based, in part, on the type of sales he made and the dollar amount of those sales.

The employe occasionally listed the wrong dollar amount for the charge he calculated for particular orders. The errors were over and under the appropriate charge. On or about March 5, 1998, the employe was warned that he had to be more careful when calculating these charges. His supervisor told the employe to use the ACIS record to get the accurate price, and offered to go through ACIS records with him to help him determine accurate pricing but the employe indicated that he did not need help, and that he would be more careful in the future.

As part of his work duties, the employe was assigned certain customers. In January of 1998, the segmentation among the sales representatives was rearranged. Some customers were added and some removed from the employe's segment. Thereafter some of the employe's former customers contacted him directly for orders. Rather than refer those customers to the appropriate account manager, the employe would process the order. On April 17, 1998, the employe was given a written warning that informed him that if he continued to serve customers outside his segment he might be discharged. Nevertheless the employe thereafter occasionally sold outside his segment.

The employe's work duties required that he submit sales reports to the employer on an occasional basis. These required that he accumulate and collect sales reports for a period of time and submit them to the employer. On a number of occasions, the employe submitted charges to the employer which had previously been submitted. On May 4, 1998, the employer met with the employe and discussed the duplicate sales. The employe said that he submitted those duplicate sales in error, and was told to be more careful when he compiled his sales records. The employe thereafter would occasionally submit duplicate sales. The employe's supervisor discussed this with him on June 8, and the employe stated he did not keep a copy of previous sales reports. The employe's supervisor told him she had given him previous sales reports and asked him whether he was now keeping those reports. The employe said that he had thrown out the reports his supervisor had given him.

On November 11, 1998, the employer met with the employe and informed him that he was discharged from his employment for his continued overbilling, duplicate billing and selling outside his segment.

The employer contended that the employe's continued unsatisfactory performance constituted misconduct. The commission agrees. The employe, despite being warned, continued to make errors and sell outside his segment. Even if the employe was not intentionally reporting sales twice or charging the incorrect amount, he was or should have been aware that the employer wished him to be more accurate in both pricing and reporting sales. The employe's supervisor had given him copies of his sales reports, because he had been throwing his sales reports away. However, he threw those reports away as well. This suggests that the employe did not make a serious effort to improve in these areas. In addition, the employe was or should have been aware that he was selling outside his segment, and should have stopped selling outside his area when instructed to do so by his supervisor. The employe's failure to correct his behavior, after he had been warned to do so, amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 37 of 1998 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 38 through 40 of 1998 amounting to $870.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 37 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $870.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on September 15, 1998, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: 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 employe 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

Dated and mailed April 15, 1999
silvian.urr : 145 : 1   MC 660.01  MC 664

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who indicated that he believed that the employe thought that he was doing a very good job, and did not think he needed any more training. On the other hand, the ALJ found that the employe's supervisor had a fairly consistent position with regard to the employe, but that her supervisors kept changing, making it difficult to give him consistent warning. In addition, the ALJ stated that he did not believe that the employe intentionally submitted orders twice, so that they would be counted twice. The commission's reversal of the ALJ is not based on any differing assessment of witness credibility or demeanor but because the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.

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

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

cc: KRISTINE MANISCALCO
C/O AMERITECH

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SEC


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