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

ANDRE M EDWARDS, Employee

SEARS ROEBUCK & CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02603943MW


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 approximately two and one-half years as a full-time sales associate for the employer, a national chain retail department store. His last day of work was April 9, 2002 (week 15). He was discharged on that date for excessive tardiness and absenteeism.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer essentially has a no fault attendance policy. Workers are subject to discharge if they accumulate ten "occurrence" points for tardiness or absenteeism.

During the last ten months of his employment, the employee was absent on several scheduled workdays and tardy several days each month. The employee called the employer to report whenever he would be absent or tardy.

The employer contended that the employee's excessive absenteeism and tardiness rose to the level of misconduct.

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 stated at the hearing that he was late on a frequent basis because of his son's sickle cell anemia, or because he had a stress-related condition. The employee did not explain why he was absent on any specific occasion. Thus, it is unclear how many times he was late as a result of his stress-related condition. The employee did not specifically explain why his stress-related condition made him chronically tardy. The employee also admitted that there were about three occasions he missed work with no real excuse. The employee did give more detail as to why his son's medical condition made him late for work. The employee offered his lay opinion that he was unable to report to work in a timely manner because of his medical condition. However, whether the employee's stress-related condition made him unable to report for work on a timely manner is a matter that must be determined by a competent medical professional. As such, the commission, on September 13, 2002, sent the employee a UCB-474 certified medical form. The commission also sent the employee a letter explaining that he should have this form filled out by his doctor and return the form to the commission by October 14, 2002. The letter further informed the employee that if the commission did not receive the form by October 14, 2002, it would make a decision based on the evidence in the record. As of the date of this decision, the commission has not received the certified medical form. Thus, the employee has failed to demonstrate that his tardiness was for a valid medical reason.

Starting in November, after the second warning, the employee evidently was allowed one excused absence for being in a car accident and having a doctor's excuse, because on December 24, he was at 9.75 and was absent, but not discharged. Then he lost a point because he worked for "Thurber" and was given another credit on January 28 for the same reason. According to the attendance chart, he was at 7.75 at that time. He was 35 minutes late February 16, ill on February 18, 13 minutes tardy on March 2, 7 minutes tardy on March 19, 9 minutes tardy on April 1, ten minutes tardy on April 2, and 7 minutes tardy on April 6. Therefore he was late six times in his last seven or so weeks of employment.

The employee was or should have been aware that his job was in jeopardy. The employee's continued tardiness, without a valid reason, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 15 of 2002 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 15 through 48 of 2002, amounting to a total of $6,831.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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 15 of 2002 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. The employee is required to repay the sum of $6,831.00 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 December 13, 2002
edwaran . urr : 145 : 1   MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ stated he did not have a perfect recollection of the hearing. However, he found the employee credible. The ALJ noted that the employee would call in when he would be only a few minutes late. This showed that the employee was interested in preserving the employment relationship. While the employee may have appeared credible when he testified about his stress attacks, by competent medical evidence that the employee was unable to report to work in a timely manner because of a medical condition.

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: 
Sears Merchandise Group
Joyce Suttles


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