ESPERANZA RODRIGUEZ, Employee

HILLVIEW HEALTH CARE LLC, Employer

On July 30, 2002, the Department of Workforce Development (department) issued an initial determination which found that the employee was discharged for misconduct connected with her employment. Benefits were denied. The employee timely requested a hearing and a hearing was scheduled before an administrative law judge (ALJ) on September 19, 2002. On September 20, 2002, the ALJ affirming the department's initial determination found the employee was discharged for misconduct connected with her employment. The last date to timely petition the appeal tribunal decision was October 11, 2002. On October 21, 2002, the employee filed a late petition for commission review. After reviewing the petition, and the employee's explanation for her untimely filing, the commission agreed to review the merits of the case.

Based on the applicable law, records and evidence in this case, the commission makes the following:

LATE PETITION

The first issue to be decided is whether the employee filed a timely petition for commission review and, if not, whether the failure to file a timely petition for commission review was for a reason beyond the employee's control. If the timeliness issue is resolved in the employee's favor, the commission has jurisdiction to consider the merits of the case. If the case is resolved unfavorably toward the employee, the commission lacks jurisdiction and the employee's petition for commission review is dismissed.

The employee explains that her petition was filed late because she never received the appeal tribunal decision. The employee then personally picked up a copy of the appeal tribunal decision on October 18, 2002 and filed her petition several days later on October 21, 2002.

In view of the employee's explanation that she never received a copy of the appeal tribunal decision and her attempt to follow through in a timely manner, the commission is satisfied that the employee established that it was beyond her control to have timely filed her petition within the meaning of Wis. Stat. § 108.09(6)(a). The employee's petition on the merits will therefore be considered.

DISCHARGE FOR MISCONDUCT

The employee contends that she did not quit her employment on or about July 11, 2002, when she telephoned in her absence due to car trouble. The commission agrees that the record supports the ALJ's conclusion that it was the employer that was the moving party in ending the employment relationship when the Director of Nursing discharged the employee on July 12. The employee was discharged for repeated absences and tardiness.

The issue for review therefore is whether the employee's chronic absenteeism constitutes misconduct within the meaning of Wis. Stat. § 108.04(5). Many of the employee's absences and/or tardiness were not for valid reasons. Furthermore, the employee received four warnings regarding her attendance problems during the short nine-month tenure with the employer. Despite these warnings, the employee failed to improve her attendance and/or reporting to work in a timely and consistent fashion. Under the circumstances, the employee's chronic absenteeism, often without valid excuse, and after warning, evinces a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect of the employee. Therefore, the employee's discharge was for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is affirmed. The employee is ineligible for benefits beginning in week 28 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed January 15, 2003
rodries . urr : 135 : 1   PC 731  MC 605.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

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uploaded 2003/01/27