SCOTT J COOK, Employee

CURT MFG INC, Employer

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:

The employee worked for a little over two years as a welder for the employer, a trailer hitch manufacturing business. His last day of work was July 18, 2001 (week 29).

The employer's policy provides that three days of absence without proper notification will be treated as a voluntarily termination. An unscheduled absence is an absence where notice was not given at the end of the previous work shift or the associate does not have personal time to cover the absence. The policy further provides that daily notification is required for each day of absence, unless the associate has a debilitating condition or pre-approved unpaid leave. The employee signed the policy acknowledging receipt of the policy.

The employee had an unsatisfactory attendance record. Most recently, on July 17, 2001, the employee received occurrence notifications for taking June 25 and July 5, 2001, off with no personal time to cover the absences, and for failing to return to work after medical appointments on July 10 and July 16. The occurrence notifications defined an unscheduled absence as one in which notice was not given by the end of the previous shift worked or the employee does not have personal time to cover the absence. The notifications further stated that "Three or more occurrences of unscheduled absences or tardiness in a sliding six month period is considered excessive and could lead to disciplinary action which may include suspension or termination of employment." On July 18, 2001, the employer issued a memo to the employee which indicated that to prevent receiving an occurrence for absence, he was required to provide documentation for absence on a letterhead from a doctor, attorney, court, etc. The memo noted that failure to provide such documentation immediately after every absence would result in disciplinary action including suspension and/or termination.

The employee was out of personal time. As required by the employer's policy, the employee asked for time off 24 hours in advance. Specifically, the employee asked to take July 19 and July 20 off for a personal family commitment. The employee's request was denied on July 18. The employee stated he was going to take time off anyhow. The employer replied that he would be written up. The employee indicated he would accept a write up and would not be appearing for work. The employee did not appear for work on Thursday, July 19 or Friday, July 20. He did not call in on either day to report that he would be absent. The employee did not appear for work on July 23. The employer received no notice that he would not be appearing for work on that date. The employee appeared for work on July 24, 2001. At that time the employer advised him that he quit his employment based on three days of absence without notice to the employer.

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason permitting immediate benefit payment. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with his employment.

The employer was aware that the employee did not intend to appear for work on July 19 or 20. The employee gave notice that he would not appear on July 19, during his shift on July 18. The employer's policy allows for notice at the end of the previous shift. The commission therefore determines that the employee's absences did not demonstrate an intent to terminate his employment. The commission finds that the employer discharged the employee.

The employee had an unsatisfactory attendance record and was warned that his absences were jeopardizing his employment. The employee incurred further discipline by choosing to absent himself from work despite being denied permission to take time off. While the employee may have considered that he provided notice of absence for July 19 and 20, the employer's policy defines an unscheduled absence as an absence when the worker does not have time available. The occurrence notifications he received on July 17 warned him that three unscheduled absences in six months could result in termination of his employment. The employee's absences on July 19 and 20 were unscheduled as the employee did not have time available to take off from work. The employee incurred a third unscheduled absence when he failed to appear for work on July 23. In addition, he did not notify the employer that he would be absent on July 23. The employee's unscheduled absences, after warning, evinced an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee rising to the level of misconduct connected with his employment.

The commission therefore finds that in week 30 of 2001, the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,464.00 for weeks 31 through 49 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employee 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5464.00 to the Unemployment Reserve Fund. The benefit check for week 30 of 2001 and $27.00 of the benefit check for week 31 of 2001 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $316.00. The initial benefit computation (UCB-700) issued on July 30, 2001, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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.

Dated and mailed December 18, 2001
cooksco . urr : 132 : 1 : MC 658

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did speak with the ALJ regarding witness credibility and demeanor. The ALJ indicated that he found the employee credible that he genuinely believed he had provided notice of his absences on July 19 and 20. The commission reverses the ALJ because it disagrees with the ALJ's conclusion that the employee's absences did not rise to the level of misconduct connected with his employment.

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.I. and other special benefit programs that are due to this state, another state or to the federal government.

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

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uploaded 2002/01/02