The department store fired Nolan for eating two hot dogs leftover from a company-sponsored 4th of July picnic. The food was originally purchased by Dillards and purportedly consumed without permission and thus Koewler was fired for failing to protect employer assets — leftovers. The Board concluded that Koewler had been fired for theft.
However, the appellate court found that although, it was agreed that a supervisor instructed employees to put the leftovers from the picnic away, there was no evidence that they were told it was to be saved 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 said in its decision.
In addition, while the supervisor claimed he told employees to put the leftovers in the freezer, the court noted Koewler and the supervisor each testified that the hot dogs at issue were retrieved from the refrigerator.The court said theft requires a knowing or intentional exertion of unauthorized control. The Board’s determination of the ultimate fact that Koewler was terminated for just cause as a hotdog thief is not reasonable. Striking an administrative law judge’s “finding of fact” which lacks evidentiary support, the court concluded that the decision of the Full Board disqualifying Koewler from receiving unemployment insurance benefits is contrary to law.
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