JERRY L SILLAS, Employee

YOUNG MENS CHRISTIAN ASSN OF METROPOLITAN MILWAUKEE 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 the employer, a non-profit association, for about one year and three months as a maintenance person. His last day of work was December 20, 2001 (week 51), when he was discharged.

The issue to be decided is whether the employee's actions, which resulted in his discharge, constitute misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

In this case, the employee was discharged for being tardy four times. The employee normally worked from 11:30 p.m. until 7:30 a.m. On July 27, the employee was two and one half-hours late because he overslept. On October 5, he was two and one half hours late because he had to take his daughter to the emergency room because she had a high fever. On October 12, the employee was three hours late because he overslept because he had been having problems with his stepson, who had come home late. As a result of this tardiness, he had a three-day suspension. He was warned that further tardiness could result in discharge.

On December 19, the employee was late for work by 45 minutes because he had been ill. He had taken medication and gone to bed before his shift started. He overslept. The employee failed to contact the director because he went to work as soon as he woke and he did not want to disturb the director by calling so late.

The employer also alleged that the employee was late on August 12, but the employer did not have any evidence to sustain the allegation. The employer called the employee's house at 11:25 p.m. and he was still home. The employer assumed he was late that day even though it was possible that he could have gotten to work on time, because he lives across the street from the employer. He was written up for falsification of the time sheet even though the employer did not have any reliable evidence that he had done so.

The employee's October 5 absence was for a valid reason as he had to take his child to the emergency room. The employee was absent on July 27 and October 12 because he overslept. The employee was suspended as a result of being tardy on three occasions.

On December 19, the employee was scheduled to begin working at his usual time of 11:30 p.m. He was sick during the day and took some medication. He went to bed prior to going to work, overslept and reported to work at 12:15 a.m. He failed to contact the director because he reported to work as soon as he woke up and did not want to disturb the director or his family by calling so late. The employee lives across the street from his work location. When the director reported for work on December 20, the employee informed him that he was late reporting for work.

The employee asserted that his discharge was not for misconduct connected with his work. The commission agrees. The employee was not absent from work, but was tardy a total of five times. Twice he was tardy for valid medical reasons. While the employee was supposed to contact his supervisor to report being late on the final occasion, the employee had legitimate concerns about waking his supervisor or his family members at such a late hour. Further the employee lived across the street, and therefore the supervisor could not have secured a replacement who would have been able to get to the workplace before the employee could. The employee worked for over a year for the employer and the commission cannot conclude that two instances of tardiness without valid reason amounts to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with the employee's work.

The commission therefore finds that in week 51 of 2001, the employee was discharged by the employing unit, within the meaning of Wis. Stat. § 108.04(5), but that his discharge was not for misconduct connected with the employee's work, within the meaning of that section.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 51 of 2001, if otherwise qualified.

Dated and mailed June 25, 2002
sillaje . urr : 145 : 8  MC 678

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that she found the employee credible when he stated that he had to take his daughter to the emergency room. She was not convinced that this medication caused him to oversleep on December 19, because the employee did not provide specific information about what he took and when he took it. However, the commission accepts the employee's testimony that he took medication because he was ill and as a result of being on medication and being ill, and in the absence of any evidence to the contrary, finds that the employee overslept on December 19.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/06/26