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


JILL G PATTERSON, Employe

NEDS PIZZA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601161MW


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 unemployment insurance, if she is otherwise qualified.

Dated and mailed May 4, 2000
patteji.usd : 135 : 1   MC 630.14 PC 714.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer contends that the employe gave her father "a pizza of about 14 or 16 inch". The employer further contends that it did not see any payment being made or exchanged. When alleging that an employe has committed theft, an employer is required to produce clear and convincing evidence that the theft occurred. While the employer produced two witnesses supporting the employer's contention, the employe produced the manager on duty at the time of the incident. This individual prepared the pizza for the employe's father and testified that it was an 8 inch pizza but that she placed it on an 11 inch circle and consequently placed it in a larger bag. This witness indicated that the pizza may have appeared larger than it actually was. This witness also testified that she saw the employe ring up the sale and put money in the register. The commission is therefore satisfied that the record supports the ALJ's findings. The employer has failed to meet its burden of proof with clear and convincing evidence of the alleged theft.

The employe also raised a concern with a memo the employe allegedly made fun of and marked up. The employer failed to bring the memo to the hearing thus making it impossible to determine the seriousness of the alleged conduct. Finally, the employer cites an early occasion in which the employe walked off the job because it was too hot. While the employe, at the very least, should have notified management, this was not the reason for the employe's discharge. Additionally, this occurred several months before the employer decided to discharge the employe.

While the employe may have presented herself as a less than ideal employe, the employer has failed to establish that the employe's conduct during her employment rose to the level of misconduct within the meaning of the law. Accordingly, the appeal tribunal decision is affirmed.

cc: NEDS PIZZA


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