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COA sides with man accused of stealing hotdogs

July 7, 2011

The Indiana Court of Appeals says a man who was fired for snatching two hotdogs from the company refrigerator is entitled to unemployment benefits. In its opinion, the COA reversed a decision by the Review Board of the Indiana Department of Workforce Development that stated Nolan Koewler’s employer – Dillards – was justified in terminating his employment.

On July 4, 2010, Dillards hosted a cookout, providing hotdogs and hamburgers for its employees. Dock manager Mike Marz had testified that the leftovers were to be saved for Labor Day. But the appeals court found that Marz told employees to put away the food; he did not testify that Koewler heard the food was intended for Labor Day.

“The record reveals that employees had been offered hamburgers and hotdogs for consumption; it does not reveal that the rescission of this offer of celebratory food was in fact communicated to Koewler,” the court wrote.

A day after the cookout, Koewler took two hotdogs from the refrigerator. Marz checked surveillance camera footage, and upon seeing Koewler nab the leftovers, reported him to the store manager.

The appeals court stated that Marz’s testimony in N.K. v. Review Board , No. 93A02-1012-EX-1431 indicates that the “off-limits” hotdogs were those destined for a freezer. However, Koewler and Marz each testified that the hotdogs at issue were retrieved from the refrigerator.

At a meeting with the store manager, Koewler admitted to the incident. A police officer was summoned, and the store manager advised Koewler that he had a choice: Sign a statement that he stole two leftover hotdogs or spend the night in jail. Koewler signed the statement and was fired.

A claims deputy for the department of workforce development had initially found that Koewler was entitled to receive unemployment compensation because he was not discharged for just cause. Dillards appealed. After a hearing, an Administrative Law Judge affirmed the deputy’s decision, and Dillards then appealed the review board. The board cited Indiana Code Section 22-4-15-1(d) in determining Koewler’s termination was just.

The appeals court held that “just cause,” as defined in Indiana Code Section 22-4-15-1, subsection (d)(9), is: “any breach of duty in connection with work which is reasonably owed an employer by an employee.” Koewler does not deny that he took the hotdogs, but no proof exists to support that he knew doing so was forbidden, the court stated.

Calling the board’s decision “unreasonable” and “contrary to law,” the appeals court reversed.

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