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


DEBRA FALES, Employe

DICKERSON STATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004153MD


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 months as a cashier for the employer, a corporation engaged in the operation of a number of convenience stores. Her last day of work was March 17, 1998 (week 12), when she was discharged for theft.

The issue which must be decided is whether the employe's discharge was for misconduct connected with the employe's employment.

A store supervisor for the employer discharged the employe because she was "padding the drawer." The store supervisor went through her shift tapes, and there was $553 from March 6, 10, 15, 16, and 17 which was not rung in and was not in the store. The employe had included a folded $20 bill with her March 6 paperwork. Workers are never to put money in their paperwork. After March 7, the employer installed more cameras in the store. On March 15, there was $122.71 worth of merchandise which the employe did not ring into the cash register. On March 16, there was $71.12 not rung in. For example, a customer would come in and the employe would ring one pack of cigarettes when the customer wanted to buy two. While the employe charged for two packs, she rang up only for one. The employe would also tell customers the price, and would then hit the no sale button which opens the cash register drawer, put the money in the drawer but not ring it into the register.

The employe subsequently plead guilty to a charge of theft and agreed to pay restitution of $553.00. The employe's actions in not ringing in transactions and then keeping the money paid to the employer by its customers amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 12 of 1998 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits in weeks 12 through 35 of 1998.

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 September 10, 1999
falesde.urr : 145 :  MC 630.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission is setting aside its decision of January 20, 1999, which affirmed the ALJ on the basis that the employer failed to provide sufficient evidence to establish that the employe was under ringing or using other means to remove money from the cash register without having the cash register come up short. The employer had contended it was unable to furnish this evidence at the original hearing because the police had requested all the evidence in the employer's possession and were unwilling to return the evidence while the case was pending. After the commission issued its decision the employer indicated that the employe plead guilty to a charge of theft from the employer. On June 24, 1999, the commission remanded this case so the employer could present evidence which it was unable to present at the hearing. On July 14, 1999, the remand hearing was held and the employer introduced its evidence. The commission's reversal of the ALJ's decision is not based on a differing impression of witness credibility and demeanor but on the evidence adduced at the remand hearing which was not available to either the commission or the ALJ when this case was originally decided.


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