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


TINA M BUSCH, Employee

LAKE LAWN LODGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003465JV


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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about six months as a systems administrator for the employer, a resort. She was discharged from her employment on June 5, 2000 (week 24).

The issue which must be decided is whether the employee's discharge was for misconduct connected with her employment.

When the employee was hired, the employee and employer agreed that the employee's hours of work would be flexible, in part because she was getting a divorce. The employee explained that flexibility was very important to her because she needed to attend to her divorce and the effect it was having on her children. The employee had a number of absences including a vacation in March, a deposition in April and four days in court attending to her divorce. The employee explained that because the employer's property is a 24-hour property there were times she would pop in to check things out. In addition she would perform work for the employer outside her daytime hours. The employee had an appointment to look at a nursing home on April 18 and a seminar on May 8 and 9. However, those absences were with notice to and the permission of the employer. In addition, the employee was ill on February 21, and March 13.

On March 20, the employee was issued a corrective action indicating she failed to make up all of her time for prior absences. The employee was warned on April 20 about her absence of April 10. The warning however, indicated that the employee could not be paged in court and should not have allowed her friend to watch the pager. Also, the employee failed to properly prepare for her absence. However, this does not amount to notice that the employee's job was in jeopardy as a result of her attendance. The warning acknowledges the fact that the employee had permission to have this time off. The employee was not aware that she could not take electronic devices into the courtroom. She gave her pager to her friend and asked the friend to call the employer if she was paged.

On April 20 the employee was also warned about being gone for several hours, and informed that she should work from 7 a.m. until 3:30 p.m.

After April 20, the employee had permission to be off on May 8 and 9.

On May 30, 31 and June 1 and 2, the employee was absent because her friend was in the hospital. The employee called in on the first day to report her absence. She called in on May 31 and informed the employer that she might be able to return to work the next day. She called the employer on June 2 to inform the employer that she would not be able to return to work until the following week. The employee did have her pager 24 hours a day so that she could be reached.

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 employer's contention was that the employee's attendance amounted to misconduct connected with her employment. The commission disagrees. The employee was frequently absent. However, at the time the employee interviewed for the job with the employer she explained that she had some significant personal problems and that she would need a flexible schedule. The employer agreed.

The employee had the employer's permission to take a vacation in March. Further she was absent four days because she was in court due to her divorce proceedings. This had also been approved by the employer. The employee was not warned about her attendance until April 20, when the employer evidently determined that it could no longer allow the employee to have as much flexibility in her schedule. After she was warned, the employee's absences were either with the employer's permission or for valid reasons and with notice to the employer. While the employee did not specifically call the employer on June 1 she had informed the employer on May 31 that she might or might not be at work that day. Under the circumstances, the employee's attendance did not demonstrate such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 24 of 2000 the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 24 of 2000 if she is otherwise qualified.

Dated and mailed January 2, 2001
buschti.urr : 145 : 3  MC 605.05  MC 605.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He thought the employee had an attitude with her supervisor and that she knew that she needed to be more accountable. The ALJ also thought that four days was a significant amount of time to be in court for a divorce. However, the employer did not question the employee's statement that she was in court for four days, and she was never required to bring in any evidence to support her absences. The employee indicated that some of her absences were optional on her part, for example the two-day seminar that was not work-related, suggesting that she was candid about her reasons for absence. The commission credited the employee's testimony that she was originally told her job would provide her with flexibility. In fact the employer agreed that the employee had explained that she was taking the job so that she could be flexible to take care of all the things that were going to be coming up in her life. After the employer warned the employee, on April 20, that she needed to work regular hours, the employee was absent only with permission or for valid reasons.

cc: LAKE LAWN LODGE

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SECURITY LTD

ATTORNEY RAYMOND E KREK
KREK & ASSOCIATES SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/01/08