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

YOLANDA GRIJALIBA, Employee

LANCASTER MINERAL POINT MILWAUKEE CARE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608375MW

On October 3, 2000, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on December 8, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On December 20, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicant law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately a year and a half as a certified nursing assistant for the employer, a nursing home. The employer discharged her on September 21, 2000 (week 39), for attendance failures, and the issue is whether those attendance failures are misconduct for unemployment insurance purposes. The commission concludes that they are not, and so reverses the appeal tribunal decision.

The employee's last year of employment was approximately September of 1999 to September of 2000. In that period of 1999, the employee was late to work on September 5 because she overslept. She left work early on November 18, because she was dizzy and sick to her stomach. She was absent December 14 and 15, with the flu. Of these three attendance failures, only one can be considered blameworthy, because there is little intentional about an absence due to illness.

In 2000, the employee had 10 attendance failures. On February 14, she was absent due to the flu, on February 22 and 23 she was late each day due to having overslept. She was absent on March 18, with dental problems. She left mid-shift on March 21, a leaving which was authorized by her supervisor, because her pregnant daughter was very ill and had to be picked up by the employee. The employee was ill on April 2, and so left work early and, again, this leaving was authorized by the employer.

The employee left work early on May 9 and, again, this was authorized by the employer; the employee's daughter had gone into labor. The employee was absent on July 22 and 23, with dental problems.

The employee missed approximately an hour of work on September 7 due to problems at home. The incident precipitating the discharge, finally, was the employee's absence from work on September 19 and 20, due to a migraine headache. Following that absence, the employer discharged the employee despite the employee's having a doctor's excuse for the migraine headache.

There is no question but that the employee had a significant number of absences but, as was the case with the 1999 absences, virtually all of the employee's 2000 attendance failures were due either to her own or her daughter's medical conditions. Indeed, the two instances of tardiness, on February 22 and 23, were the only attendance failures not due to the employee's illnesses or her daughter's pregnancy.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Absences due to illness or to one's daughter going into labor, however, cannot be deemed intentional for purposes of the misconduct definition. The commission therefore finds that, in week 39 of 2000, the employee was discharged but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance if she is otherwise qualified. There is no overpayment, as a result of this decision.

Dated and mailed February 14, 2001
grijayo.urr : 105 : 1  MC 605.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Indeed, no one disputed that the employee's absences were for the reasons stated. As a matter of law, however, that attendance record does not rise to the level of misconduct for unemployment insurance purposes.

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uploaded 2001/02/15