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

LORRAINE M KASSENS, Employee

FAMILY TREE RESIDENTIAL FACILITIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600860WB


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 5 years as a caregiver for the employer, a residential facility for elderly residents. Her last day of work was December 20, 2001. She was discharged on December 25, 2001.

In December of 2001 the employee met with the employer's director of human resources and expressed her dissatisfaction with having to work two weekends each month. The employee indicated that her weekend work had become an issue between her and her husband. The employee sought to work only one weekend a month. The employer denied the employee's request because if it granted it to the employee other workers would want a similar schedule.

The first weekend the employee was scheduled to work after the meeting with the employer was December 22 - December 23, 2001. The employee did not appear for work on either day and did not provide the employer with notice that she would not be appearing for work as scheduled. The employee was at home caring for her daughter who was ill. The employee's husband was also at home during the weekend. The employer discharged the employee on December 25, 2001 (week 52), for her absences without notice.

The issue to be decided is whether the employee was discharged for misconduct connected with her work. 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 insurance 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."

The employee was absent for two days without notice to the employer. The employee could have given notice on each day. There is no evidence the employee's husband was incapable of caring for their daughter. The employee's daughter was not so ill that she required medical attention. The employee's husband's presence would have allowed the employee to personally give notice of her absence on each day. At the very least, the employee could have asked her husband to call the employer on her behalf to give it advance notice of her absences and allow it time to arrange coverage. The employee knew the consequence of failing to appear for work was that the employer would either have to try to find a replacement with short notice or other workers would have to bear the burden of the employee's absence by performing additional duties. The employee's failure to notify the employer of her absences evinced an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 52 of 2001 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,261.00 for week 52 of 2001 and weeks 2 through 8 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,261.00 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 July 19, 2002
kasselo . urr : 132 : 1 : MC 605.01

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


The commission did consult with the ALJ who presided at the hearing in this matter. The ALJ indicated that he found the employee credible with respect to the reason for her absences and failure to call the employer. However, the commission does not consider the employee's description of the circumstances to have been so overwhelming that she would not have realized that she was scheduled to work on December 22 and needed to contact the employer. Even under the employee's version, she had no valid explanation for failing to contact the employer on December 23. The ALJ also credited the employee's testimony that she did not believe she would be discharged because other workers had been absent without notice and were not discharged. However, the employee's testimony did not establish that she was relying on such belief in deciding whether to contact the employer.


NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2002/07/26