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


MICHAEL W SENGBUSCH, Employe

HEISER TOYOTA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607593MW


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, and after consultation with the ALJ and additional hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately six years as a body shop cleaner for the employer, a car dealership. His last day of work was October 22, 1998 (week 43), when he was discharged from his employment for the alleged theft of two dollars. The issue is whether the employe's actions, for which he was discharged, constituted misconduct connected with the employment. The commission concludes that the employe lacked the requisite intent to steal the two dollars necessary to support a finding of misconduct, and so reverses the appeal tribunal decision.

Part of the employe's work duties included inventorying the contents of automobiles brought to the dealership for repair and cleaning those vehicles after repairs were completed. In mid-October, 1998, the employer received a complaint from a client that money was removed from an automobile left for repairs. On October 22, 1998, the employer placed two dollars in an automobile brought to the workplace for repairs. He then directed the employe to perform services on the automobile. The employe completed those services and returned the keys to the employer, at which time the employer gave the employe another task to perform. The employer then checked the automobile and found that the money placed in the automobile was gone. The employer approached the employe and asked him about the money. The employe took his wallet out of his pocket and produced the money, explaining that he had intended to give it to the employer all along but had just forgotten to do so. Later that day the employe was informed that he was discharged from his employment for taking the money out of the automobile.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe in this case suffers both from depression and mental retardation. He has a lowered conceptual ability, coupled with loss of focus/attention. His short-term or "working" memory is suspect, he tends to "lose focus" during therapy sessions, and he functions best with explicit directions and a structured environment. Given these factors, the commission cannot conclude that the employe intended to misappropriate the two dollars in question. Rather, once the employer assigned the employe the employe's next task, the employe no longer was focused upon his previous task for the employer (part of which would have included turning over the two dollars in question to the employer). As it is, the commission believes the employe did not have the intent to steal the two dollars, so his failure to turn the money over to the employer was not the intentional disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 43 of 1998, the employe was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance as of week 43 of 1998, if he is otherwise qualified.

Dated and mailed August 4, 1999
sengbmi.urr : 105 : 1 MC 630.14

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge indicated that he had considered the employe's mental disability, and conceded that the employe's conduct might have been affected by that disability. The administrative law judge noted that multiple questions were "lost" upon the employe; this observation is consistent with the employe's medical diagnosis. In finding misconduct, the administrative law judge reasoned that the employe's failure to return the money to the employer was inconsistent with an intent to return it. The commission's reversal is based upon its consideration of the medical evidence put into the record at the remand hearing, evidence not available to the administrative law judge. The commission also believes the inquiry is not whether the employe intended to return the money to the employer; rather, the question is whether the employe intended to keep the money for himself. Based upon the evidence, the commission cannot conclude that he did so and so has reversed the appeal tribunal's finding of misconduct.

cc: WILLIAM H SENGBUSCH


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