DANA L SEERING, Employee

BROWN COUNTY DEPARTMENT OF COMMUNITY PROGRAMS, Employer

On July 30, 1993, the department issued an initial determination which held that the employe was discharged for misconduct connected with her employment. The employe timely requested a hearing on the adverse initial determination, and hearing was held on September 1, 1993. On September 8, 1993, the administrative law judge issued an appeal tribunal decision reversing the initial determination, and finding that the employe was discharged, but not for misconduct connected with her work within the meaning of sec. 108.04 (5), Stats. The employer timely petitioned for commission review of the adverse appeal tribunal decision.

Based on the law, records and evidence in this case, the commission makes the following:

The employe worked for nine years as a nursing assistant for the employer, a mental health facility. On November 13, 1992, the employe received a documented oral warning for excessive tardiness. On March 10, 1993, the employe received a written warning for tardiness. On April 6, 1993, the employe received a three day suspension for tardiness, and for falsifying her timecard to cover up a tardy. The employer mandated that the employe receive counseling and develop an action plan to eliminate her tardiness. The employe complied with this mandate. However, on April 16, 1993, the employe was again tardy for work. At that time, the employe was given a five day suspension, and was again required to present the action plan and discuss her tardiness problem with a counselor before she could return to work.

The employe was again tardy on June 13, 1993, because she was drinking the night before. June 14, 1993, was the employe's regularly scheduled day off. The employer contacted the employe and she agreed to a conference with the employer on June 15, 1993, but the employe then called the employer on June 15, 1993, stating that she would not be able to come to work due to a doctor's appointment. The meeting was rescheduled for June 16, 1993, but the employe again missed the meeting, stating that she could not come in due to personal reasons. On or about June 17, 1993, the employe told the employer that she was being treated for alcoholism.

On June 28, 1993, the employe met with a representative of the employer and her counselor to develop the terms for her return to work. She agreed that she would no longer be tardy. After this meeting, the employer sent numerous letters to the employe telling her that she should report to work on July 6, 1993, but she did not do so. On July 11, 1993, the employe notified the employer that she was admitted to an inpatient alcohol treatment program. On July 13, 1993, the employer terminated the employe.

The employe submitted a medical report, form UCB-474, which confirms that the employe is diagnosed as having alcohol dependence. On that form, the doctor indicates that the employe can probably abstain from the use of alcohol during her pregnancy, but will return to drinking after she has the baby. The doctor also states that the employe can work full-time without restrictions.

The commission has found that where an employe has no control over his or her use of alcohol, and this lack of control leads to tardiness and absenteeism, the employe's actions do not amount to misconduct, because they do not demonstrate an intent to harm the employer's interests. Varney v. Saint Joseph's Hospital, LIRC, March 19, 1992. However, the commission has also found that an employe must submit certified medical evidence showing that his or her alcohol dependency was uncontrollable and caused the employe's absences from work. Rums v. Manifold Services. Inc., LIRC, July 21, 1993. The UCB-474 form submitted by the employe indicates that the employe's alcohol dependence is controllable, since her doctor states that she probably will be able to control her alcohol use during her pregnancy. In addition, the fact that the employe's doctor states that she can work full-time can only indicate that the employe's alcohol dependence would not interfere with her ability to work. Therefore, the commission finds that the employe could have controlled her tardiness, and that her extensive record of tardiness after repeated warnings constitutes misconduct. Therefore, the commission finds that in week 29 of 1993, the employe was discharged for misconduct connected with her work, within the meaning of section 108.04 (5) of the statutes. The commission thus finds that the employe must repay $3792 to the Unemployment Reserve Fund, under section 108.09 (9) (c) of the statutes.

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1993, 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 employe must repay $3792 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work for 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 May 6, 1994
119 : CD8630   MC 605.09  PC 714.10 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. Such conferral is necessary when the commission is considering the reversal of an appeal tribunal decision and credibility observations at hearing by the administrative law judge are a factor in the administrative law judge's decision making. Although the administrative law judge did indicate that credibility was a factor in his decision making, the commission's reversal of the appeal tribunal decision is not due to a differing assessment of the credibility of any testimony at the hearing. Rather, as a matter of law, the employe's alleged alcohol dependency and its effects upon the employe's behavior can only be proven by certified medical evidence to that effect

cc: John C Jacques, Assistant Corporation Counsel

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