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


KAREN M CHRISTOPHERSON, Employe

DRUG EMPORIUM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603508MW


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 the employer, a drugstore, for approximately six months as a cashier. Her last day of work was April 3, 1999 (week 14), when she was discharged.

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

On April 3, 1999, the employe's boyfriend came into the store and made some purchases. The employe's boyfriend went through her line. The employer's head cashier saw that there were items in the employe's boyfriend's bag, including a rabbit.

The employer's policy provides that workers cannot ring up purchases for themselves or a family member, or friend. This policy was explained to the employe when she was hired.

In 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."

The employer asserted that the employe's violation of its policies amounted to misconduct. The commission agrees. The employe not only rang up her boyfriend's purchases, but failed to charge him or charged him incorrectly for one or more of his purchases. The employe's register tape for the transaction in question did not show the rabbit which the employe's boyfriend had in his bag. Further, the employe was unable to explain the ten-cent taxable item which was not otherwise identified. The employer had no ten-cent taxable items for sale. The employe's assertion that her boyfriend returned the rabbit to the shelf was not credible, nor was her contention that she forgot she was not supposed to ring up friends or family members. She had been informed of this policy only six months earlier. Because the employe failed to follow the policy as far as ringing up friends, because the employer's head cashier saw a bunny in the employe's boyfriend's bag but this did not appear on the transaction history, and because there was an unexplained ten-cent taxable item on the register, the commission concludes that the employe incorrectly rang up her boyfriend's purchase, to the financial detriment of the employer. The employe's actions in this regard amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 17 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 16 through 35 of 1999, amounting to a total of $1,501.00 for which she was not eligible and to which she 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1999, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $1,501.00 to the Unemployment Reserve Fund.

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 December 22, 1999
chriska2.urr : 145 : 1 MC 693  MC 630.14

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who stated that she believed that the employe truly forgot the rule which prohibited ringing up friends. The ALJ believed that the employe did not intend to deceive the employer. The ALJ noted that the employe agreed that her boyfriend brought the rabbit to the register to look at it, and that nobody actually examined the boyfriend's bag. Further, the ALJ thought that the supervisor should have mentioned, when she saw the employe's boyfriend standing in the employe's line, that she was not allowed to ring him up. However, for the reasons stated in its decision, the commission disagrees with the ALJ's credibility determination.

cc: DRUG EMPORIUM

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