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


SUE L MADISON, Employe

ALDI  INC (WISCONSIN), Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606717RC


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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately seven and one half years as a cashier and assistant manager for the employer, a retail grocery store. The employe's last day of work was September 2, 1999 (week 36), when she was discharged.

The employe was discharged for violations of employer policies relating to inventory control, discovered when it ordered an audit of the employe's store and interviewed the staff. The employe was asked to list any policy violations related to inventory control that she was aware of. She admitted to a number of small infractions and was discharged by the new district manager.

The employe once left the store with a Salisbury steak without having paid for it. She had left it with the cashier but the cashier had not rung it up until it was too late. She instructed the cashier to ring it up first thing in the morning and told her supervisor about it the next day.

On other occasions, supervisors provided pizza and instructed the staff to get soda and charge it to disposal. She participated. She also ate merchandise marked for disposal on occasion. The employe testified that a supervisor told the workers 3 to 4 months prior to the employe's discharge that eating merchandise would no longer be tolerated and she never did it again.

At her manager's direction, she left the store at closing with food she had purchased rather than removing it by 7:00 PM as required by store policy. The manager directed her to do for security reasons.

Finally, the employe once approved a cashier's decision to allow a regular customer to leave the store with 24 cans of cat food despite having only paid for 12.

The issue is whether the employe was discharged for misconduct connected with her employment.

At the hearing, the employe credibly testified that her conduct was with management knowledge or approval. The commission concludes that despite the employe's admission of rule violations, no misconduct is shown. In many instances, the manager knew of her conduct and in some instances actually directed her to violate policies. In the case where the customer took cat food on credit, the commission concludes acted with of poor judgment but without any intention to injure the employer's interests. When the employe was directed to stop eating discarded product she did so and did not repeat the conduct. While the employer has shown the employe violated store policies, it has not demonstrated that these rule violations demonstrated a deliberate and substantial disregard of its interests.

The commission therefore finds that in week 36 of 1999, the employe was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 36 of 1999 if she is otherwise qualified.

Dated and mailed February 18, 2000
madissu.urr : 178 : 5   MC 687 MC 665.04   MC 665.12

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

 

MEMORANDUM OPINION

The commission talked with the ALJ prior to reversing. He indicated that he credited the employe's testimony that the manager was aware of these policy violations at the store. However, he also believed the employe was responsible for her behavior without regard to this condonation. The commission reaches a different conclusion for the reasons stated above.

cc: ALDI FOODS


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