Wis.LIRC UC Decision: Smith - January 29, 2001 - MC 605.09 - Absence, Reason, General - absences because of baby-sitter problems - employee responsible for ensuring reliable childcare or getting children to school and being on time for work - repetitive nature of employee's attendance problems - she had been warned her job was in jeopardy due to attendance and tardiness - failure to resolve problems after being warned, misconduct

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

DEVONNE R SMITH, Employee

SECURITYLINK FROM AMERITECH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00604067MW

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 receptionist for the employer, a security company. Her last day of work was January 13, 2000 (week 3) when she was discharged.

The issue which must be decided is whether the employee's actions, which led to her discharge by the employer, constitute misconduct connected with her employment.

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."

In the employee's six months of employment, the employee called in sick on 14 occasions. In addition, the employee was two hours late on August 18, 5 hours late on August 24, 1.75 hours late on August 26, 1.25 hours late September 15, 3.25 hours late on September 27, 2.5 hours late on September 30, 2.5 hours late on October 19, 1 hour late on November 1, 2.75 hours late on November 16, 2.5 hours late on November 23, and 2.5 hours late on December 10. She was also 4 hours late on December 2 but had a medical appointment and provided an excuse for that date. Finally, the employee was 25 minutes tardy on January 13, because she had a flat tire. However, she also had a bag of food from a fast food restaurant so the office manager believed that she was not too eager to get to work if she took the time to stop for food.

The employee testified that she was late because she had to take her children to school, because her children were sick or because of baby-sitter problems. The commission notes also that the employee's tardiness was substantial as she was over an hour late on all but the last occasion. Her children's illness was a valid reason for tardiness. However, the employee is responsible for ensuring that she has reliable childcare or that she make arrangements to get her children to school and still be on time for work. While emergencies do occur, the repetitive nature of the employee's problems should have alerted her to the fact that she needed to resolve her child care and transportation issues. The employee had been warned that her job was in jeopardy as a result of her attendance, including her tardiness. She asserted that all her absences were for valid reasons, mainly illness. However, the employee's failure to resolve her tardiness problems, after being warned, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 3 of 2000 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. � 108.04(5).

The commission further finds that the employe was paid benefits for weeks 43 through 51 of 2000, amounting to a total of $2,633.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. � 108.03(1). Pursuant to Wis. Stat. � 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. � 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. � 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. � 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 3 of 2000 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee requalified as of week 16 of 2000. She is required to repay the sum of $2,633.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

For the benefit year that began in week 28 of 2000, the misconduct finding reduces the maximum benefit amount from $7,235.00 to $4,252.00, resulting in a total overpayment of $2,633.00 or $129.00 for week 43, $313.00 each for weeks 44 through 51 of 2000.

Dated and mailed January 29, 2001
smithde.urr : 145 : 1 MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission agrees with his determination that the employee's absences were for valid reasons. The employee's undisputed testimony was that she was absent as a result of illness. However, the commission was concerned with the number and duration of her tardies. Thus, the commission remanded for further testimony on the reason for her frequent tardiness. The commission reverses based on evidence adduced at the remand hearing that was not available to the ALJ when he made his decision.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

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uploaded 2001/01/31