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


DIANTHA D SPROUSE, Employe

SEARS ROEBUCK & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97601992MD


On May 15, 1997, an administrative law judge for the Department of Workforce Development issued an appeal tribunal decision holding that the employe had been discharged for misconduct connected with her employment. Pursuant to Wis. Stat. § 108.09 (6)(c), the commission sets aside the appeal tribunal decision on the ground of mistake, and issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during two weeks as a service scheduler for the employer, a retailer. Her last day of work was January 22, 1997. The issue to be decided is whether the employe's discharge on January 30, 1997 (week 5) was for misconduct connected with the employe's employment. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employe was scheduled to attend paid training on January 23, 1997, but called in to the employer and reported that she had slipped and fallen. The employer asked her to bring in a doctor's release when she returned, and rescheduled the training for January 28, as she expected to be able to return then. On January 28, the employe requested the training to be rescheduled again because a doctor's appointment was running late; the employer rescheduled it for the afternoon of January 29. On January 29, the employe called in and reported that she had fallen again and expected to be able to report the next day. The employer was unwilling to reschedule the training again, and terminated her employment for absenteeism on January 30.

Misconduct for unemployment compensation purposes essentially is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. A large number of absences in a short term of employment can be the intentional disregard of an employer's interests which is misconduct and, indeed, in this case the employer discharged the employe on the occasion of the employe's four-day-long absence from work after only a week and a half of employment. The employe's absences were due to two instances of the employe slipping and falling and one instance of a doctor's appointment running late, however. These are legitimate reasons for absences, and preclude a finding that the employe's attendance failures were an intentional disregard of the employer's interests. In reaching the opposite conclusion, the administrative law judge had reasoned that no evidence was adduced on the employe's behalf concerning her absences, as she had not appeared at the hearing. The employer's testimony regarding the employe's reasons for absence was admissible under the rules of evidence, however, as admissions by a party opponent which, by definition, are not hearsay. See Wis. Stat. § 908.01 (4)(b).

The commission therefore finds that, in week 5 of 1997, the employe was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified.

Dated and mailed: January 30, 1998
sproudi.urr : 105 : 1  MC 605.09  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission originally remanded this case for hearing on the issues of the timeliness of the employe's petition for review and the employe's failure to have appeared at the original hearing in the case. Rather than resolve those issues, the commission believes the matter is more directly resolved under Wis. Stat. § 108.09 (6)(c), which allows the commission on its own motion to take up an initial determination, appeal tribunal decision, or commission decision within a year on the grounds of mistake or newly discovered evidence. The commission believes the employer's testimony regarding the employe's reasons for absence is admissible for the reasons stated in the decision, and that the administrative law judge mistakenly did not consider it when determining the employe's discharge to have been for misconduct.

cc:
PATRICIA DU CHARME
SEARS TELESERVICE CENTER


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