STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ARLETHA LOVE, Employe

LAKESIDE ANIMAL HOSPITAL LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604482MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for seven years as a kennel worker and maintenance worker for an animal hospital. She was discharged on her last day of work, May 11, 1999 (week 20).

The employe worked a very flexible schedule with both day and evening hours. During the night hours, she was sometimes on the premises alone. The employer discovered in February that the employe was not on the premises on one occasion while punched in. When the employer asked where she was, she indicated she had gone to the store to get Limeaway for the employer and something to eat. She was told to set the alarms if she left on any other occasion.

In May, the employer became suspicious that the employe might not be working all her evening hours and conducted a surveillance. On May 4, the employer arrived at the employer's premises and parked across the street from 10:20 p.m. until 11:40 p.m. The building was dark throughout this period indicating no one was present. The employe punched in at 9:53 p.m. and punched out at 2:59 a.m. on May 4. When later questioned about this, the employe denied she left the building. On May 6, the employer arrived about 10 p.m. He saw the employe come out of the building at 10:10 with a cigarette, speak briefly with a co-worker and drive away. The employer left at 11 p.m. and the employe had not yet returned. The employe's time card indicates she worked from 7:53 p.m. until 2:33 a.m. The employe denies she left the building on this occasion also. The employe was discharged for being punched in while not working on May 4 and 6, 1999.

The issue in this case is whether the employe's discharge was for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The central issue in this case is credibility. The employer credibly testified that the employe was not at work on two occasions when she was punched in. The employe denies this. The commission and the ALJ both credit the employer's account that the employe was not at work when she was punched in. Such conduct is detrimental to the employer's interests. The employer relied on the employe to work unsupervised during the hours she was punched in. She did not do so on at least two occasions. No warning regarding such behavior is necessary. Neither did the employer condone leaving the premises without punching out after the February incident. On that occasion, the employe offered the explanation that she was gone on employer business to get a cleaning product. This is a legitimate reason for being away from the premises while still getting paid. On the occasions at issue here, the employe offered no business purpose but simply denied being away from work. Such denial convinces the commission that the employe knowingly acted contrary to the employer's interests.

Therefore the commission finds that the employe's discharge in week 20 of 1999 was for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the total amount of $7,722 for weeks 20 through 46 of 1999; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 20 of 1999, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $7,722 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed January 27, 2000
lovearl.urr:178 : 1  MC 630.09  MC 697

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge regarding credibility prior to deciding to reverse. The ALJ indicated that he did not credit the employe's testimony that she was working on May 6 after she was observed leaving. He was uncertain if she worked on May 4. The commission concludes that she did not based on the employer's testimony that lights would have been visible if someone had been working inside. The ALJ reached a decision contrary to the commission's based on his conclusion that the employer condoned this behavior on a prior occasion. The commission has distinguished that case in the decision above and therefore concludes no condonation of the employe's misconduct existed.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: ATTORNEY SHERMAN S ABRAHAMSON
S ABRAHAMSON & ASSOCIATES SC

Appealed to Circuit Court. Affirmed November 20, 2000. (Circuit Court decision summary)

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