ERIC D PHILON, Employee

GUYERS BUILDER SUPPLY INC, Employer

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:

The employee worked as a delivery person from September 12, 2001, for the employer, a distribution center for appliances. His last day of work was October 17, 2001. After failing to report for work on October 18, 19, and 22, he was notified of his termination on October 24, 2001 for being absent for three days without notice to the employer.

The first issue to be resolved by the commission is whether the employee voluntarily terminated his employment or was discharged by the employer.

On the employee's last day, he was arrested and incarcerated after work for missing a court date on a disorderly conduct charge. He remained incarcerated for three days. After his release on October 22, he called the employer and was advised that he was under consideration for discharge for his absence. He was so notified of his termination on October 24.

The employee intended to report for work at all times during his absence, but was unable to do so because he was confined to jail. He directed a friend to call the employer on October 18. He assumed that his friend had called as directed. Nevertheless, the employer received no call on his behalf and until after he was released on October 22. Therefore, he did not voluntarily terminate his employment. The employer terminated the employment relationship by notifying him of his discharge on October 24.

The second issue to be resolved by the commission 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 commission has in the past generally treated an employee's absence from work because of incarceration as misconduct. The commission and the courts have held that in such cases an employee's absence is not for a valid reason when an employee intentionally engaged in criminal activity that led to an extended absence from work because of incarceration. See, Joe D. Culp v. Consumers Steel and Supply Co., Dane Co. Cir. Ct. (December 11, 1958); Schweikert v. Ganton Technologies Inc., UI Dec. Hearing No. 91606281RC (LIRC Mar. 24, 1992). The employer's work rules provided for termination for being absent for three consecutive days without notice to the employer. The employee was absent for invalid reasons and without notice to the employer. The employee's conduct showed an intentional disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 43 of 2001 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 $4,382 .00 for weeks 10 through 23 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 43 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 $4,382.00 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 February 11, 2003
philoer . urr : 132 : 1  MC 605.091  MC 626 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not recall any particular aspects of demeanor or credibility that led to his decision in this case. The commission has reversed the ALJ because it considers that the employee knew by his conduct that he risked incarceration and therefore would be unavailable for work.

cc: Guyer's Builder Supply, Inc. (Mequon, Wisconsin)

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