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


ELGIN H PARKER, Employee

CONTINENTAL TEXTILE COMPANY OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606546MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for six months as a shipping and receiving clerk for a clothes recycling business. He was discharged on March 9, 2000 (week 11) for violating the employer's attendance policy.

The employer's attendance policy permits only three absences in a three month period. Thereafter, the employee receives a three day disciplinary suspension. A fourth incident results in discharge. The employee's attendance record exceeded the employer's policy.

The employee was absent on January 5, 17, 24. He was absent on February 1 due to a court date but he brought a court summons to the employer and this absence was not counted against him. He was two hours tardy on February 7. He was again absent on February 11 and 14. He received a three day suspension for his poor attendance and was warned a further absence would result in his discharge. He went home early on February 28. He was discharged following a final absence on March 8.

The employee testified that all but one of his absences were to go to court concerning a child custody issue and that he gave the employer advance notice of his court hearings. The employee brought only one court summons to the employer. The employee testified that he was absent the last time because he had to sign some papers and pay money for a new apartment.

The issue to be decided is whether the employee's absences were for valid reasons and with notice to the employer.

Although the employee testified that his absences were for valid reasons, the commission does not find his reasons credible. The employee testified that all but one of his absences were to go to court over a child custody issue, but on the one occasion he brought in a court summons to the employer he was not charged with an attendance violation. The commission does not accept that an employee aware that his job was in jeopardy due to poor attendance would not offer the employer proof of court dates if this was his genuine reason for absence. Moreover, on the last occasion the employee was absent, he asserted he was arranging for an apartment. However his shift ended at 2:30 p.m. and the employee could not explain why it was necessary to take the entire day off for this purpose. By the time of this final occurrence, the employee was already on notice he would lose his job if he was absent again. His absence without a compelling reason was in substantial disregard of the employer's interests in his regular attendance.

The commission therefore finds that the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2000.

Dated and mailed January 17, 2001
parkeel.urr : 178 : 3  MC 605.01  MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge regarding witness credibility prior to reversing. The ALJ did not have a clear recollection of the employee's testimony during the hearing. For the reasons given above, the commission finds the employee's explanations for his poor attendance not credible and therefore reverses the appeal tribunal decision.


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uploaded 2001/01/29