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

ROSIE M WISE, Employee

BANK ONE WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01603735MW


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 approximately nine months as a collections customer service representative for the employer, a bank. The employee's last day of work was March 24, 2001 (week 12) when she was discharged.

During the course of the employee's employment the employer kept track of the employee's tardiness and sick days. The employee was frequently tardy and subject to the employer's progressive discipline procedure. The employee received a correction action plan on January 19, 2001 and a final written warning on March 26, 2001 regarding her tardiness. Two days later on March 24, 2001, the employee was again tardy to work by four minutes. The employee was discharged.

The employer's attendance policy disciplinary guidelines were submitted into evidence. The employer defines a tardy as "an associate not at their work station ready for assigned duties at their scheduled start time and upon arrival an associate that is late in excess of eight minutes is considered tardy." The employer notes that this standard coincides with payroll docking pay. The disciplinary guidelines also indicate that the employer is to follow documented discussions, which the employer followed as noted above.

Many of the employee's tardiness were due to car problems and taking care of her disabled daughter. The employee recalled being late on January 19 because of car problems. The employee recalled calling a cab that day to get to work. The employee also admitted that she was tardy on March 10 because she had car problems. The employee also admitted that she was tardy on March 15 because she had to pick up her daughter from school before she went to work because her daughter became ill at school. The employee notified the employer of her tardiness. On March 22, the employee was five minutes late and issued a final warning for her excessive tardiness. On March 24, the employee was four minutes tardy and discharged.

The issue therefore is whether the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). 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' with in the meaning of the statute."

Under the employer's own attendance policy, the employee was not tardy on March 22 or March 24 because her late arrivals were less than eight minutes, the leeway the employer provided its employees. Because the employee was not tardy under the employer's written procedures, the commission is unwilling to conclude that the employee's discharge was for misconduct

While the commission does not condone excessive absenteeism or tardiness, the employee's actions did not rise to the level of intentional disregard of the employer's interests under the circumstances. The commission notes that the mere proof of absence or tardiness does not create a presumption of misconduct connected with the employment. Absences or tardies for valid reasons and with notice are not considered intentional conduct. Several of the employee's tardies met this description.

The commission therefore finds that in week 12 of 2001, the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5). The employee is not obligated to repay the overpayment.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2001, if she is otherwise qualified. The employee is not required to repay the sum of $2,440.00 to the Unemployment Reserve Fund.

Dated and mailed November 28, 2001
wiseros . urr : 135 : 1  MC 678

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission did not do so because it does not disagree with any credibility assessment made by the administrative law judge but rather reaches a different legal conclusion when applying the law to the facts. The employee was not tardy on March 22 or March 24, 2001, under the employer's own written guidelines. Furthermore, the tardies prior to those dates were generally for valid reasons and generally with notice.

cc: 
Bank One Wisconsin (Milwaukee, Wisconsin)
Attorney Karyn L. Rotker
Continental Consultants


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uploaded 2001/12/04