BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

PETER M SOMA, Employee

LINEN CENTER BROWN GROUP RETAIL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91005204MD


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of laic are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed July 20, 1992
105 - CD1018  MC 605.01

 

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employer's representative has asserted that the employe should have known that his continued absenteeism was unacceptable, and that the employe's failure to make an effort to correct his attendance record left the employer no choice but to discharge him. The record indicates, though, that the employe was attempting to better his attendance failures. The employe's last tardiness, for example, was due to his failure to have better estimated the length of time it would take him to get from school to work on Wednesdays. September 18, the day of discharge, was only the second Wednesday after the employe had rearranged his work schedule pursuant to his school attendance. He had already determined that he had not given himself enough time to be able to timely report to work, and intended to speak with the employer about that fact and rearrange his work schedule so as not to be late. The record also indicates that the employe took reasonable steps to overcome the car problems which had caused some of his attendance failures. Finally, the employe was not at fault in all of his attendance failures, some of which were due to his illness or his father's terminal cancer. Given all of these circumstances, and that the employe's attempts to improve his attendance were occurring up to the end of the employment, the majority of the Commission agrees with the Appeal Tribunal that the employe's attendance record was not an intentional disregard of the employer's interests such as would constitute misconduct for unemployment compensation purposes.

 

PAMELA I. ANDERSON, CHAIRMAN (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

The employe had a poor attendance record throughout his employment with the employer. He had the same excuses for his tardiness at the beginning as at the end, that he had not allowed enough time to get to work. When the employer accommodated the employe by allowing him to change his schedule to attend school, the employe again failed to allow enough time even though the employe set the schedule. The employe found that his schedule did not work in week 37 but did nothing to change it. In week 38, when he was again late, the employer discharged him. Only at the point of discharge does the employe give the selfserving testimony that he intended to talk to the supervisor about changing the time again.

I believe the employe's conduct was such that it amounted to a wilful and wanton disregard of the employer's interests and thus was misconduct. I would reverse and deny.

/s/ Pamela I. Anderson, Chairman


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