“Misconduct” according to

the IDES: Dental Office Manager

Uses Boss’s Credit Card

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Gets no Unemployment

Benefits Even if Prior Personal Use

Implicitly Permitted

            In September 2008 Barbara Phistry was fired by her boss, a dentist, from her position as office manager when he learned that she had been using the office credit cards for personal reasons.  Dr. Decker discovered this when he received notice from one of the credit card providers that he had earned points for card use at a restaurant he did not patronize.

            He admitted the office had no written policy about using office cards for personal purposes and had not even told Phistry and the rest of his staff that such use was prohibited.  He told the Illinois Department of Employment Security it was “common sense” and an “unspoken policy.” She admitted that she had made multiple charges over a month’s time.  Phistry told the IDES at a phone hearing that she had intended to tell him about the $1,131 in charges when he returned from vacation, and that he had previously permitted her to use the card in the past for an office birthday party for her sister (also a dentist office employee). But she claimed she had used the card in the past to have her carpets cleaned, but Dr. Decker did not recall this incident.  Phistry further explained that her mother had died and she had used the card to buy clothes that her children could wear to the wake.

            After the phone hearing the referee found eligibility, noting that previous personal use of the card had been implicitly accepted (coupled with an offer to reimburse), and there was no rule in existence that prohibited personal charging with the card.  Given the IDES take on “misconduct in connection with the work,”  Dr. Decker had not presented evidence of an established rule and the claimant had presented evidence of a past practice.  The Board of Review reversed, finding that her evidence of past use did not constitute implied permission, and that she had willfully engaged in conduct harmful to the employer by running up charges over a thirty-day period without advance permission.  Phistry appealed to the Circuit Court judge that sits as an appeals judge reviewing IDES final determinations, and this judge reversed the Board of Review.

            Earlier this month the First District Appellate Court reversed Judge Tolmaire, finding that Phistry had “used her position as an office manager to make personal purchases on a business credit card over a 30-day period without her employer’s permission.”  Phistry “acknowledges that these purchases were intentional” and not with implied consent.  Her employer agreed that she had been permitted to use the card in the past for her sister’s birthday, but that was an office event, not a personal purchase.

            Since harm to the employer is an element of proving misconduct, the court’s findings as to injury are worth noting:  1) loss of trust that had been placed in her by Dr. Decker,  2) financial loss from purchases, and  3) cost of training a new office manager.

 11/29/2010