STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
PATTY E JORGENSEN, Employee
GENERAL MOTORS CORP, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003662JV
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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
DECISION
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.
Dated and mailed January 5, 2001
jorgepa2.usd : 105 : 1 MC 605.09
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The employer asserted in its petition for review that the claimant's actions constituted misconduct, that the employee was aware of the seriousness of her past absences and that the absence precipitating the employee's discharge was not justified by the medical documentation she submitted. In a case like this, there must be some level of fault on an employee's part for the absences which precipitate the discharge. In the present case, though, the record simply does not establish such. Specifically, although the employer questioned the validity of the employee's May 22 absence, the record does indicate that the employee had a doctor's appointment on that date and that, indeed, that appointment was part of a treatment plan the employee was undergoing through the employer's own Employee Assistance Program. Given these factors it just does not follow, as the dissent tries to argue, that the employee's May 22 absence was not for a valid reason. With regard to the employee's May 23 absence, the record indicates that the employee was nauseous and vomiting. This is a valid reason for absence, however, and that is simply the end of the inquiry. The dissent attempts to "bootstrap" the employee's prior personal difficulties to this absence. The difficulty is that there is no evidence whatsoever to indicate that the employee's May 23 absence was due to anything other than what she said it was, a panic attack. The administrative law judge did not find the medical information provided by Dr. Mannino to be persuasive; indeed, it borders on the offensive. While it may be true, finally, that the employee's last absence violated the "last chance" agreement, in that the absence was not considered to have been due to major illness or injury, that is not dispositive. A last chance agreement is a private contract between parties, and cannot supercede the unemployment insurance law. That law limits a finding of misconduct to the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's last absences, as having been due to a doctor's appointment and to illness, respectively, cannot be deemed an intentional or substantial disregard of the employer's interests.
For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.
cc: GENERAL MOTORS TRUCK & BUSINESS GROUP
ANTHONY KLEMER
C/O GENERAL MOTORS
PAMELA I. ANDERSON, COMMISSIONER (dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. The employee was on a last chance agreement which required her to remain drug and alcohol free for the life of the agreement which was 12 months. The agreement provided that any sick leave for reasons which are not considered major illness or injury will result in immediate discharge. While I agree that private agreements do not supercede the unemployment statutes, that does not resolve this case. The reason the agreement was strict on absences was because of the employee's past alcohol problem.
The employee was absent on May 22. She testified that her previous supervisor had given her the day off but she called before 6:00 a.m. to remind her new supervisor that she had the day off. Her new supervisor testified that he had no knowledge that she had approved vacation and after checking he called her back and told her to report for work. She did not report for work. The supervisor also testified that she had told him in the past when she would be off prior to the day requested off. The employee alleges that on May 23 she was sick and vomiting and when to the doctor. The doctor found that he could not say that she needed to be off work because the employee looked fine when he saw her.
The doctor did follow up on the employee's request for him to talk to her union representative. The doctor's note says "Job loss. I told her I would talk to the union representative, which I did. I really can not be of any further assistance, again I feel that people need to take responsibility for themselves. I am not going to falsify things or embellish the truth in order to save somebody's job." The doctor also reported that "She is upset at me saying that she just wanted me to say that she missed work and had to miss work that day and I said I could not really assess that, she looked fine when I saw her and I do not think that is necessitated being off work all day."
The administrative law judge and the majority believe that the doctor's report borders on offensive. I believe that might be true but for the fact that the employee has had serious alcohol problems in the past as well as absences accompanying those problems. Put in the context of this case, I believe that the doctor's opinion was reasonable.
I would enforce the last chance agreement because I believe that the employee did not have a preapproved vacation day on the first day and I accept the doctor's opinion on the second day. I would reverse and find that the employee was discharged for misconduct connected with her employment.
______________________________________
Pamela I. Anderson, Commissioner
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