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

Subject: Dan Paar v. Labor and Industry Review Commission and Midas Muffler & Brake Shops, Case 03 CV 814 (Wis. Cir. Ct., Dane Co., November 13, 2003)

Digest Codes:  MC 630.07  MC 640.03   BR 335.04 

 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, the employee 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. Before the circuit court the employee argued that his actions were not intentional due to a perceived lack of clarity about whether a converter was required on the truck. The employee argued in the alternative that his overpayment should be waived, because the appeal tribunal had erred by allowing benefits.

Held: The commission's finding of misconduct is affirmed. Federal law clearly prohibited the employee's actions and his violation of that law in the employer's shop constituted misconduct. The court also agreed that the overpayment should not be waived, citing Wis. Stat. § 108.22(8)(c)2., which provides that a commission reversal of an appeal tribunal decision does not constitute "departmental error" for purposes of an overpayment waiver.

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 2003/11/24