KELLY L SPRISSLER, Employee

WAL MART ASSOCIATES INC, Employer

On August 17, 2001, the Department of Workforce Development issued an initial determination which held that the employee's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 2, 2001 in Janesville, Wisconsin before a department administrative law judge. On October 4, 2001, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for review of the adverse decision, and the matter now is ready for disposition.

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

The employee worked approximately two years for the employer, most recently as a cashier. Her last day of work was July 25, 2001, following which she was off work for several reasons, including car breakdown and the terminal illness of her mother. The issue is whether the employee's failure to contact the management of the employer during the time she was off, is disqualifying for unemployment insurance purposes. The commission does not believe it is, and so reverses the appeal tribunal decision.

The employee was scheduled to work on July 26. Late on July 25, she had an automobile breakdown. At approximately 1:00 a.m. on July 26 she telephoned the store to report that she would not be in on July 26. She asked the night manager to let the store manager know she would not be able to move her car until it was fixed (broken gas line). She asked the night manager to have the manager call her in the morning and give her the support manager's telephone number, so the employee could try to arrange a ride to work in the interim.

No one from the employer telephoned the employee, so the employee telephoned the store to have a manager paged. The manager did not answer the pages, and the employee hung up after waiting between 10 and 15 minutes. The employee's purpose in telephoning at this time, was to give notice of her absence that day and to indicate that she would be able to report to work the following day. The customer service manager the employee spoke with told the employee that she had been crossed off the schedule for the rest of the week. The customer service manager told the employee that she would have the store manager call the employee.

No one called the employee on Saturday and the employee did not report to work. On Saturday night, the employee received a telephone call regarding her terminally ill mother, and went to Illinois on Sunday to visit her. Upon her return, she had a message on her answering machine from the employer's head cashier, asking where she was and indicating that the employer had not heard from her.

The employee was not scheduled to work on Monday, July 30. She went to the store that evening and was in the store for approximately half an hour. The employee spoke with a couple of customer service managers, who told her she needed to talk to a store manager. One of the customer service managers indicated he would call management personnel to come up and speak with the employee. He paged management, but no one ever came up front to speak with the employee. The next morning, the employee again telephoned the store, but no manager took her call. She then contacted the district manager and president of the company, at which point she was told she had been discharged for absences without proper notice to management.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Certainly, timely notice of absences is something an employer can expect from its employees. In this case, though, it is unclear what else the employee could have done to give the employer notice of her absences. She attempted to telephone the employer on July 26, but no manager would speak with her. She went to the store itself on Monday, July 30; again, no manager answered the page and came to speak with her, even though she was in the store for approximately half an hour. Further, even though the store manager did not have direct notice from the employee of her absences, yet other management personnel in the store did. The commission has held that notice of absence that is not "by the book," does not necessitate a finding of misconduct for unemployment insurance purposes. See, Armstrong v. Bentley & Son, Inc., UI Dec. Hearing No. 95600141MW (LIRC May 10, 1995). In that case, the employer's required method of reporting absences was contact with the supervisor. The employee had not contacted his supervisor, however, but rather had given notice to co-workers at the job site (who then had relayed the message to the employer). The commission held that the employee's contacts, though not by the book, still were not misconduct for unemployment insurance purposes. The same reasoning applies in the present case.

The commission therefore finds that, in week 31 of 2001, the employee was discharged but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance as of week 31 of 2001, if she is otherwise qualified.

Dated and mailed December 21, 2001
spriske . urr : 105 : 1  MC 605.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge found the employee to be credible, but believed that the employee did not make sufficient effort to inform the employer of her absences. He therefore found that failure by the employee to be conduct inconsistent with an intent to continue the employment relationship. For the reasons stated in the body of this decision, the commission disagrees with that legal conclusion of the administrative law judge.

cc: Wal Mart Associates, Inc. (Janesville, Wisconsin)

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