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

EARL R GILES, Employee

WISCONSIN BELL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401521AP


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 two and one-half years as a maintenance administrator for the employer. The employer discharged him on March 15, 2002 (week 11).

The employer does not excuse absences for medical reasons unless it qualifies under FMLA. As of February of 2001, under the employer's policy absences and tardiness were treated the same. The employer's policy provided that 6 or more instances of tardiness within 12 months warranted suspension or discharge.

In 2001, the employee was tardy on February 24, March 2, April 27, June 6, October 24, November 20, November 24, December 21 and December 28. He received a written warning on March 6, 2001, and a two-day suspension in May of 2001, for his tardiness. Exhibit 6. On November 13, 2001, the employee received a written warning for an unexcused absence.

On January 14, 2002, the employee was given a "final chance" agreement in lieu of suspension pending termination. The agreement noted the employee's tardiness in 2001. The agreement provided that if the employee was tardy while he still had six or more tardies on his record in a 12-month period, he would be discharged. Exhibit 5.

On January 26, 2002, the employee's employment was suspended for two days due to an absence on January 26, 2002. Exhibit 4, page 1. The employee was tardy on March 2, 2002, and discharged.

The issue to be decided is whether the employee was discharged for 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."

The employee did not establish that he was tardy for generally valid reasons. Indeed, the employee attributed the majority of his tardiness in 2001 to oversleeping. Repeated instances of oversleeping are not valid reasons for failing to appear for work when scheduled. The employee received ample warning that his tardiness was not acceptable and was jeopardizing his employment. Even considering that the employee had a valid reason for his tardiness on March 2, 2002, that tardiness was only one of a number of attendance violations considered in the employee's discharge.

The commission therefore finds that in week 11 of 2002 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,904.00 for weeks 11 through 37 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. Wis. Stat. § 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 11 of 2002, 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 $7,904.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 15, 2002, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 September 24, 2002
gilesea . urr : 132 : 9 : MC 605.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that credibility was not a factor in her decision. The ALJ did not find the employer's absenteeism record, specifically Exhibit 2, to be reliable. The commission reverses the ALJ because it finds the relevant employer records to be reliable. The employer recorded the employee's tardiness on a summary of absence record, Exhibit 3, at the time the tardiness occurred. The warnings the employee received, including the "final chance" agreement signed by the employee, referenced the instances of tardiness recorded in the summary of absence record.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc: 
Continental Consultants, Attn: James B. Schmidt


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uploaded 2002/10/04