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

Subject: James C. Garry  v. Federal Express Corporation and LIRC, Case 98-CV-004405 (Wis. Cir. Ct., Milwaukee Co., February 10, 1999)

Digest Codes: PC 712.5   MC 630.07

The employe began his employment as a courier for the employer on 5/20/85. He was discharged on 10/28/97, after it was discovered that he had forged a customer’s signature in an attempt to make the employer think that he had delivered a package which he had actually left back at the warehouse. The employer also took into account the fact that he had been reprimanded in March 1997 for a similar infraction in which he lied about making a delivery to the proper customer. Finally, the employer considered the fact that on 3/3/97, the employe had issued an electronic dispatch to all the employer’s couriers urging them to deliberately make late deliveries as a “tribute” to another carrier who was being fired by the employer.

These facts were elicited at a hearing held on 1/5/98, at which the employer appeared but the employe did not appear. The ALJ issued a decision finding misconduct, but the employe requested a new hearing based on alleged good cause for failing to appear. The appeal tribunal decision was set aside and a new hearing was held to determine whether the employe could establish good cause. At the second hearing the employe asserted that he had not appeared because he did not want to miss work at his new job. The ALJ found no good cause and reinstated the original decision.

The commission affirmed the ALJ and the employe appealed, arguing that good cause should have been found for missing the hearing because he did not want to miss a day of work at his new job. He also argued that the “misconduct” of which he was accused was actually “company practice,” and that all employes did it.

Held: The commission is affirmed. The employe did not demonstrate good cause for failing to appear and credible evidence supports the commission’s finding of misconduct.

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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