BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

ALLEN D GUESS, Employee

Involving the account of

VILLAGE OF MUSCODA - GRANT COUNTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-003206 DV


The Initial Determination of the Department of Industry, Labor and Human Relations (the Department) held that the employee was discharged for misconduct based on his attendance record. Consequently, benefits were denied beginning with week 2 of 1990. The employee filed a timely appeal and a hearing was held before an Appeal Tribunal. The Appeal Tribunal modified the Initial Determination to find that the employee quit his work with the employer, but not for a reason constituting an exception to the general disqualification provision under sec. 108.04(7)(a), Stats. As a result, the Appeal Tribunal Decision also denied benefits to the employee. However, less severe requalification requirements are imposed for voluntary terminations than are imposed in cases of discharge for misconduct. The employer petitioned the Commission for review of the Appeal Tribunal Decision under sec. 108.09(6)(a), Stats.

Based on the applicable laws, records and evidence in the case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a laborer in a waste treatment facility for the employer, a local governmental unit. The employee's last day of work was January 8, 1990. When he did not appear for work on January 9, 1990, the employer began the procedure to terminate the employment relationship. The first issue is whether the employee quit his job with the employer or was discharged. If the employer discharged the employee, the next issue is whether the employee was discharged for misconduct. If the employee quit, the next issue is whether he quit for a reason that fits an exception to the provision making employees who quit ineligible for unemployment compensation.

The employer had a "no-fault" attendance policy which assessed demerit points against employees for tardiness, leaving work early, failing to report for work and failing to notify the employer of an absence. Demerit points were not assessed for absences caused by work-related injuries, volunteer fire or medical duties. An absence excused by a doctor was considered to be only one absence, regardless of how long an employee actually was off work. One point was deducted from an employee's total if the employee passed 15 scheduled workdays without an attendance violation. If an employee accumulated more than 25 demerit points he or she was subject to discharge.

The employee was absent from work or late to work on a number of occasions after he began working full-time for the employer. In its January 9, 1990, letter purporting to discharge the employee (Exhibit 1), the employer's general manager set out the occasions on which the employee received demerit points for poor attendance. The general manager also testified about the absences, as did the employee, and the Appeal Tribunal summarized the testimony as follows:

"In the three and one-half months prior to his last day of work, the employee was absent, with notice to the employer, on three occasions for personal reasons. In addition, he was tardy due to oversleeping on one occasion, left work early one day due to failure of the employer's heating system and was absent approximately one and a half days due to a family illness, with notice to the employer. On December 27, 1989, the employer warned him that his absentee point total had nearly reached the point at which he would be discharged if any further attendance violations occurred. Although he lived only one mile from his work location, he was absent on January 9, 1990, allegedly because his car would not start. He also failed to report to work the following day."

The Appeal Tribunal concluded that the employee's failure to report to work by simply walking the short distance to the employer's facility from his home on January 9 was an action that he knew or should have known would sever the employment relationship. The Appeal Tribunal therefore concluded that the employee quit his job with the employer. However, the employer contends that, because the employee accumulated more than 25 demerit points when he failed to appear for work on January 9, he should be considered instead to have been discharged for misconduct on that date.

The Commission notes that the distinction between a voluntary termination and a discharge is not always clear. For example, the Supreme Court has held that a voluntary termination under sec. 108.04(7)(a), Stats., may include a situation in which an employer discharges the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980). In general, the Court has held that when an employee shows that he or she intends to leave his or her employment by conduct inconsistent with the continuation of the employment relationship, that employee intended and did leave his employment voluntarily. Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

In the past, the Commission has treated unexcused absences from work or attendance violations as misconduct in some cases and voluntary terminations in others. In either event, the employee's intent is important. If the employee's past conduct shows a pattern of unexcused absences, it may be reasonably held that the attendance violations are an intentional disregard of the employer's interests and the standards of conduct it had a right to expect from the employee. A finding of discharge for misconduct might be appropriate under the standards set out in Boynton Cab Co. v. Neubeck, 234 Wis. 249, 259-60 (1941). On the other hand, if the employee simply stops appearing for work, a finding of a voluntary termination seems more reasonable under Nottelson and Dentici.

In this case, the Commission agrees that the employee's decision not to walk to work because of the weather on January 9 seems unreasonable. However, he did give the employer some notice of his absence on that day. The notice indicates that on January 9, at least, the employee did not intend to terminate the employment relationship. Consequently, the employer's decision to discharge him under its no-fault attendance policy, as indicated by the discharge letter sent to him on that date, severed the employment relationship.

Finally, the Commission is satisfied that the employee was fairly assessed 25 demerit points under the employer's policy. The employee's attendance record established a pattern of unexcused absences or late arrivals to work. Even apart from any demerit point scheme, the employee acted in intentional disregard of the employer's interests and the standards of conduct it could reasonably expect from him. At the time the discharge letter was mailed to the employee on January 9, his repeated attendance violations had risen to the level of misconduct.

The Commission therefore finds that in week 2 of 1990, the employee did not voluntarily terminate his work with the employer, within the meaning of sec. 108.04(7)(a), Stats.

The Commission further finds that in week 2 of 1990, the employee was discharged by the employer, within the meaning of sec. 108.04(5), Stats., and that his discharge was for misconduct connected with his work, within the meaning of that section.

The Commission further finds that the employee was paid benefits in the amount of $59.00 in week 29 of 1990, and $81.00 per week for each of weeks 37 through 39 of 1990, amounting to a total of $302.00, for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., he is required to repay $302.00 to the Unemployment Reserve Fund.

DECISION

The Appeal Tribunal Decision is modified to conform with the foregoing, and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 1990, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the amount of $302.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed October 9, 1990
101 - CD1000  MC 626  VL 1007.01

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


NOTE: The credibility of the witnesses played no part in the Commission's modification of the Appeal Tribunal Decision. Rather, the Commission reached a different legal conclusion when applying sec. 108.04(5) and (7)(a), Stats., to essentially the same set of facts as found by the Appeal Tribunal. Consequently, a credibility conference with the Appeal Tribunal was not necessary. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972).


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