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

Subject:  Harold C. Starks (Hearing No. 00609234MW) v. LIRC & Burns International Security Services Corporation, Case 01-CV-004619 (Wis. Cir. Ct., Milwaukee Co., January 29, 2002)

Digest Codes: MC 630.01

The employee worked as a site supervisor for a contract security agency. He had received prior discipline for minor infractions, but he was discharged primarily for a final incident in which he broke into a security drum belonging to the client to which he was assigned. The metal drum had a small, hinged door cut into it, and it was padlocked. The client’s security manager had recently changed the padlock and had the only keys to it, but he was on vacation. The employee had been in possession of a key to the old padlock.

The employee testified that early in the morning of 9/18/00, a security guard told him that some contractors regularly dropped certain access cards into the drum, which had a small opening at the top for such deposits. The employee alleged that he thought he might need these access cards to distribute to contractors during the upcoming day, and he therefore used a hammer and another tool to bend and remove the hinges from the drum door. There were no access cards in the drum but the employee found several slips of paper on which security guards had indicated preference for either 8-hour or 12-hour shifts. He removed these pieces of paper and kept them. He told the client’s second shift supervisor what he had done when she came on duty at the end of his shift. When the employee’s supervisor confronted him about what he had done he explained that he had broken into the drum to get the access cards he believed were in it, and he gave the slips of paper he had found to the supervisor.

The appeal tribunal found no misconduct, citing the unrebutted fact that the employee had prior access to the drum. The commission's decision reversed and found that the employee had actually broken into the drum in order to see if any other security personnel had deposited written complaints about him into the drum.

Held:  The commission is reversed. The crucial factor in determining misconduct is the employee’s intent, and there is no credible and substantial evidence demonstrating that the employee broke into the drum for any reason other than to obtain the access cards which he believed were in it. The commission found that the employee failed to tell his supervisor that he was looking for access cards when the supervisor confronted him about the incident. However, the record demonstrates that the employee did tell his supervisor this was the reason he broke into the drum. The employee never tried to hide what he had done, and informed the client’s supervisor of his actions at the end of his shift. His actions constituted poor judgment but not the intentional disregard of the employer’s interests which constitutes 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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uploaded 2001/03/04