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

Subject: Dan Paar v. LIRC and Midas Muffler & Brake Shops, Case No. 03-3536 (Court of Appeals, November 18, 2004)

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: BR 335.04   MC 630.07   MC 640.03   MC 699

The employee worked for 13 years as a store manager for the employer, a muffler and brake shop. Several weeks prior to his last day, he told the employer’s owner that he was going to put a dual exhaust system on a truck that belonged to a friend. The employee did not indicate that he was going to cut off a catalytic converter and not replace it, something which is forbidden under federal law and also under the employer’s shop rules. On the employee’s last day the owner came into the shop and saw that the employee had cut off the converter and reprimanded him. The employee asserted that a converter was not required because the truck had been put together from 1975 and 1976 truck parts, and 1975 trucks did not require converters. However, the exhaust system on the truck was a 1976 system. The employee and the owner exchanged words and after the employee asked whether he should give his two weeks’ notice, the owner told him to leave immediately.

The commission found that the employee deliberately violated federal law and the employer’s rule, and found misconduct. The circuit court affirmed. On appeal to the court of appeals the employee asserted that he did not intend to violate the law, but was confused because of the model changeover. He also asserted that it was an isolated incident not justifying a misconduct finding. The employee asserted that it was inequitable and contrary to the purpose of the Act to require repayment of benefits. Finally, he argued that the definition of “departmental error” (Wis. Stat. 108.02(10e)) conflicts with Wis. Stat. 108.022(8)(c)2., that provides that a commission reversal of an appeal tribunal decision does not constitute “departmental error.”

Held: In a per curiam, unpublished decision, the court of appeals affirms the commission in all respects. The employee exposed the employer to the potential of substantial fines for violating the law. He never attempted to clarify whether the vehicle was required to have a catalytic converter, and he did not inform the employer about what he was doing. The employee did not present a reasonable, contrary interpretation of Wis. Stat. 108.22(8)(c)2., which the court considers to be an unambiguous statute. The employee’s equitable arguments concerning the overpayment should be addressed to the legislature.

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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