Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Everett Seils v. Erickson Bakery Co. & Ind. Com., No. 115-249 (Wis. Cir. Ct., Dane Co., Aug. 14, 1964)

Digest Codes: MC 630.05   MC 630.16

The commission found that the employe, a bakery route salesman, was discharged for misconduct consisting of dishonesty, when an investigation by the employer and two store owners revealed that on 12 out of 13 consecutive days, he charged the stores for merchandise that he did not deliver. The employe alleged that the findings were not based on substantial credible evidence, as the witnesses did not produce the original billing records for cross-examination, but only "recaps," and that as the acts alleged were tortious, a clear preponderance of the evidence was required to prove them. He alleged further that even if there were shortages they were too trivial to constitute misconduct.

Held: Affirmed. The evidence supported the commission's decision.  From the fact that if the charges (which were called to the employer's attention by the store owners) were proved, the company's reputation for honesty would be seriously marred, it may be strongly inferred that the company would make every effort to disprove rather than confirm them. The company representative who investigated was the plant supervisor and had been a route salesman for 10 years and was familiar with the employe's billing practices. He was positive that there was no error in his findings, which were also checked and corroborated by other persons. The employe was an experienced bakery route salesman and it is inconceivable that he would commit error in his billing on 12 out of 13 consecutive days unless it was intentional. Likewise, such error would not likely occur at the same time to two different patrons unless it was intentional. The shortages were all in small amounts with the evident purpose of avoiding detection. And, finally and most important, all the billings were overcharges and there were no undercharges. At no time did he sell himself short. If it was due to inadvertence or carelessness as the employe claims, probable error would come into play, and there should have been about as many undercharges as overcharges.

It is true that the shortages were trivial in amount, and there was no loss to the employer, the loss being borne by the patrons; but the company suffered a loss of reputation for honesty in dealing with its customers. Money losses can be insured against, but loss of reputation cannot. The employe failed his employer in this respect. Honesty is one of the most cardinal and sacred duties and obligations that an employe owes to his employer. The law never sanctions dishonesty.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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