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


JULIA A LITTLEWOLF, Employe

FOREST COUNTY POTAWATOMI COMMUNITY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96201840RH


On November 9, 1996, the Department of Workforce Development issued an initial determination which held that the employe quit her employment but not for a reason allowing immediate eligibility for unemployment insurance. The employe timely requested a hearing on the adverse determination, and hearing was held on January 14, 1997 in Rhinelander, Wisconsin before a department administrative law judge. On January 27, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding witness credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven months as an administrative assistant/secretary for the employer, a sovereign Indian nation. Her last day of work was July 23, 1996 (week 30). The first issue to be decided in this case is whether the employe voluntarily terminated her employment or was discharged by the employer. A second issue involves her eligibility for benefits in view of the nature of her separation from work. The commission concludes that the separation was a discharge by the employer, not for misconduct within the meaning of Wis. Stat. § 108.04 (5), and so reverses the appeal tribunal decision.

The employe had stomach surgery on July 10, 1996, which was more extensive than had been anticipated. The employe was not released to work until September 23, 1996. The employe worked that day, and reported to work the following day. The personnel manager assigned her to clean out a supply cabinet, a task the employe was unable to do because of her surgery. She told her supervisor she was not feeling well, and went home. Later that morning, the Tribal Nurse came to see the employe and assist her in changing her bandages (from the surgery and subsequent complications). The employe at this time still was having to change her bandages four to five time per day.

The employe was absent the following day, September 25, because she still was not feeling well. This absence was with notice to the employe's supervisor. The employe was also absent September 26 and 27, for the same reasons. On September 26, the employe gave notice of her absence to someone in the employer's personnel department, on September 27, she gave notice to someone in her department, housing. The employe also had a doctor's appointment on September 27, but she missed it because she herself was unable to drive (due to pain medication) and her arranged ride fell through. The employe was absent without notice on September 30; at this point she had not yet been able to obtain a medical excuse from her doctor, and the employer's policies listed as grounds for immediate termination a failure to report to work without medical excuse for three or more consecutive working days. On October 1, 1996 (week 40), the employer discharged the employe pursuant to that policy.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Of course, notice of absence is such a standard but, in this case, the employer had notice of the general reason for the employe's absences. The employe had undergone stomach surgery on July 9, surgery which resulted in complications leading to the employe's extended absence from work. In addition, the employe's inability to have more promptly obtained a medical excuse from her doctor was justified. Further, even violations of an employer's rule governing absences and notice is not necessarily misconduct for unemployment insurance purposes. See Milwaukee Transformer Co. v. Indus. Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964). In that case, the employe was absent several weeks following an automobile crash. Although she initially kept the employer properly informed of her absences, after nine days of absences she then did not contact the employer again for more than a month. This was despite an employer rule requiring employes to report in by telephone every day of absence unless physically unable to do so. In finding the employe not guilty of misconduct, the court reasoned the employe had given the employer sufficient notice of her illness and necessary absence, to enable the employer to satisfactorily respond to the employe's absence and meet its production needs. The commission believes that case governs the present one and so concludes that, in week 40 of 1996, the employe was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

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

Dated and mailed: February 5, 1998
littlju.urr : 105 : 1 MC 605.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge had found that the employe quit the employment by failing to obtain medical documentation of her absences at the end of September. It is true that such a failure can constitute conduct inconsistent with an intent to continue the employment relationship (and as such be a quit), but the commission does not believe that is what occurred here. Rather, the employe had legitimate reasons for her absences and for her failure to have timely obtained the medical documentation required by the employer's policies.

cc: ATTORNEY ALYSIA LA COUNTE


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