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


JANET D POLK, Employe

LIPHATECH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601141MW


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed August 4, 1999
polkjan.usd : 178 : 1 MC 693

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe was guilty of misconduct when she knowingly violated the employer's purchase policy by having an item shipped to her home address and then bouncing the check intended to pay for it. It states that the ALJ erred in focusing on the lack of a formal policy. It further argues that the employe's carelessness and neglect in bouncing the check harmed its interests with its suppliers and she either knew or should have known this was a likely consequence of her actions. The commission disagrees.

The employer permitted employes to purchase for personal use items from employer suppliers. There was no formal policy governing this practice. The employe ordered a color printer from an employer supplier and asked that it be shipped to her home address. She told the supplier it was for her personal use. While it was a departure from her prior practice, the employe asked the supplier to send the printer to her home address.

The focus of a misconduct case is on the intent of the employe. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the 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 violations 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. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

In this case, the employe acted consistent with her understanding of the policy. The commission does not credit the employer's assertions that the employe should have known having the printer sent to her house would violate the employer's policy or could harm the employer's interests. Moreover, the employe could not have anticipated the unintended consequences to the employer's relationship when the supplier's records concerning the employer's account were inadvertently altered during this transaction or that her check would bounce harming the employer's relationship with the supplier. While the employer might reasonably have resented this conduct and the short term damage it caused to its relationship with the supplier, the employe demonstrated poor judgment rather than any intentional and knowing disregard of the employer's interests. Neither can the commission conclude that her actions were so grossly negligent as to be the equivalent of knowing misconduct. For the above stated reasons and those stated in the decision, the commission affirms the appeal tribunal decision.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe order a printer using the employer vendor but had the printer sent to her home. If the employe had not written a check that bounced, the employer would never have known about her purchase. While the employe testified she received permission from Roxanne Knuese that she wanted to buy the printer and have it shipped to her home, Knuese credibly testified "I did not have a conversation with the employe where she told me she was going to order a printer and have it sent to her home and I said fine. She did not page me. I am sure of that."" Knuese also testified "It is totally against company policy to purchase something and set up a ship to address to your home."

The employe's purchase caused the employer to lose its credit with the client and have all outstanding invoices become due immediately. By having the printer sent to the employe's house, the bill would also be sent there. The employer would have no usual way of tracking the employe's purchase.

The employer presented testimony of the human resources manager who purchased steel through the company but it was shipped to the employer not his home.

I believe that the employe's conduct in having the printer shipped to her home without permission was a wilful and wanton disregard of the employer's interest and thus misconduct connected to her employment. I would reverse and deny benefits.

___________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY KATHLEEN M O'TOOLE
MICHAEL BEST & FRIEDRICH LLP


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