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

ANTOINETTE JAMES, Employee

CI DELL PLASTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607536MW


On August 18, 2001, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 3, 2001 in Milwaukee, Wisconsin before a department administrative law judge. On October 12, 2001, the administrative law judge issued an appeal tribunal decision reversing the initial determination of misconduct. The employer filed a timely petition 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a little under a year as a third-shift machine operator for the employer, a custom mold concern. The employer discharged her on August 6, 2001 (week 32), and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

Of the employee's nine months of employment with the employer, she was on a two-week excused leave of absence in February, and was absent due to illness/medical leave from April 18 through June 8, 2001. In addition, the employee was laid off due to lack of work April 4-13 and June 11-22. This represents 13 weeks, or approximately a third of the employee's employment. The employee thus actually was in work status for the employer for only approximately six months, and it is in this time frame that the employee's attendance failures must be considered.

The employee was absent due to illness on January 10 and 24. She was tardy on four occasions, January 29, March 5, April 16, and July 9. She had attendance failures due to transportation difficulties on March 8, 9, and 12. All this is the precursor to the attendance failures in the three weeks before the discharge of the employee.

The employee was absent on July 16 due to illness. She only telephoned the employer the next morning, either at the end or shortly after the end of her shift. The employee was absent on July 26, again due to illness. She asserted that she telephoned the employer and gave timely notice of her absence, specifically to the second shift supervisor (because the third shift supervisor was not in yet). The employer's records indicate that the employee again only left a message in the morning, either near or after the end of her shift. The employee was absent due to illness on August 1. The parties dispute whether this absence was with notice to the employer. The employer's records indicate that it was without any notice whatsoever. The employee's daughter testified that she called the employer approximately half an hour before the beginning of the employee's shift, to indicate that the employee would not be in, due to illness.

Finally, the employee was absent without notice on August 3; she was stranded on the freeway returning home from Illinois, and made it home only by 5:00 a.m. The employee testified that she figured by the time she made it home it was too late to call.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Notice of absence, as soon as it is possible to give it, is one such standard. And where, as here, an employee has a significant number of attendance failures for valid reason (illness), it is the employee's responsibility to minimize the number of attendance failures not for valid reasons. The employee did not do so. First, the employee did not establish valid reasons for her several instances of tardiness. She also did not establish a valid reason for her late notice of absence on July 16. Even giving the employee the benefit of the doubt with regard to the notices of the July 26 and August 1 absences, by that point it was the employee's obligation to avoid attendance failures if at all possible to do so. Yet the employee failed to give the employer any notice of her August 3 absence, even upon her return home. The entirety of the employee's culpable attendance failures reflect the intentional and substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 32 of 2001, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $124.00 per week for each of weeks 32 through 51 of 2001 and $89.00 for week 52 of 2001, totaling $2,569.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2001, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $2,569.00 to the Unemployment Reserve Fund.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 13, 2002
jamesan . urr : 105 : 8   MC 605.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge credited the employee's evidence regarding notices of the July 26 and August 1 absences. The commission concludes, even giving the employee that benefit of the doubt, that the sum of the employee's culpable attendance failures is misconduct for unemployment insurance purposes.


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uploaded 2002/03/15