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

Subject: Walter P. Furyk  v. LIRC and Lakeland Retirement Foundation, Ltd., (Hearing No. 98202013RH) Case 99-CV-95 (Wis. Cir. Ct., Oneida Co., November 17, 1999)

Digest Codes: MC 630.09

The employe worked as a food purchaser/preparer and site manager for a nonprofit organization that provides meals and other services to the elderly. He typically began work at 4:30 a.m. or 5:30 a.m. On 11/9/98, his supervisor, Orcutt, arrived at work at 6:40 a.m. and found nothing disturbed, from which she inferred that the applicant had not yet arrived. She saw the kitchen lights go on at 7:10 a.m. and concluded that the employe arrived at that time. For the next six workdays Orcutt telephoned the kitchen each morning between 5:30 a.m. and 7:00 a.m. to see if the employe was there. There was never any answer. On 11/19/98, Orcutt parked across the street from the employer’s parking lot at 4:30 a.m. and waited to see when the employe would arrive. She observed him arriving at 7:02 a.m. When she subsequently reviewed his timecard it showed arrival times of either 4:30 a.m. or 5:30 a.m. for each day. Orcutt confronted the employe, who told her the early arrival time marked on his timecard for 11/19/98, was an unintentional error he had made due to stress from personal matters, and the other times when she telephoned he was probably at the grocery store making food purchases for the employer. Orcutt did not believe his explanation and fired him. Both the appeal tribunal and the commission found misconduct.

Held: In an oral decision the circuit court affirmed the commission. It was strictly a case of credibility and the evidence supported the commission’s inference that the employe falsified his timecard.

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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