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

ANDRE GIBSON, Employee

FRED USINGER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02604625MW


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 about nine months as a scaler clerk for the employer, a sausage manufacturer. His last day of work was April 23, 2002 (week 17).

The employer has a "no fault" attendance policy, under which workers accumulate "points" for incidents including absences and failing to punch the time clock. The employer discharges workers after they accumulate 9 points.

Between July 23, 2001, and January 5, 2002, the employee accumulated 6.5 points. He was absent on five occasions, late for work on one occasion, and failed to punch the time clock on two occasions. On January 5, 2002, the employer verbally warned him about his attendance.

On January 9, 2002, the employee was absent from work. Because he had accumulated 7.5 points, the employer issued him a written warning.

On February 6, 2002, the employee was late for work. On February 8, 2002, he failed to punch the time clock in the morning. These incidents increased his point total to 8.5. As a result, the employer suspended him for one day and warned him that any further incidents could result in his discharge.

On April 24, 2002 (week 17), the employee overslept and called the employer about 45 minutes after his shift had started. Because of this incident, he exceeded the allowed points under the attendance policy, and the shipping supervisor advised him that his employment was terminated.

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer. 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 commission finds that the employee's discharge for continued attendance violations, after warning, was for misconduct connected with his work. The employee was aware of the employer's policy and thus the standards of attendance expected of him. The employee received ample notice that his attendance was unacceptable, and ultimately that it was jeopardizing his continued employment. Except for September 6, the employee could not provide any valid explanation for being absent from work. After the employee had reached the final warning stage he provided late notice that he would not be appearing as scheduled because he overslept. The employee's violations of the employer's attendance policy, including his failure to record his punch-in time on three occasions, demonstrated an intentional and substantial disregard for the employer's interests.

The commission therefore finds that in week 17 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 $5,838.00 for weeks 17 through 41 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 17 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 $5,838.00 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 24, 2002
gibsoan . urr : 132 : 1 : 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 his impressions of witness credibility and demeanor, in particular, as it related to his finding that the employee was predominantly absent due to illness. The ALJ indicated that he drew such inference based on the employee's testimony that he was absent on September 6 due to illness. The commission does not consider that such inference can be made based on the evidence in the record. The employer established that the employee violated its attendance policy and received warnings that his failure to appear for work as scheduled was jeopardizing his employment. The evidence and reasonable inferences that could be drawn from such evidence did not establish that the employee missed work for generally valid reasons.


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uploaded 2002/11/01