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

COLLEEN R DARGA, Employee

EASTBAY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006296GB


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 for the employer, a catalog communications center, for a year and three months as an order entry associate. Her last day of work was June 13, 2002, and the employment relationship ended on June 17, 2002 (week 25).

On January 23, 2002, the employee received a warning for having been late on three occasions during the last 30 days. At the hearing the employee was unable to recall the circumstances surrounding those incidents, but explained that she is the secondary caregiver for her 6-year old nephew and sometimes has to provide transportation for him if her sister is ill.

The employee was absent with the flu on March 7-10, and March 12, and provided the employer with proper notice of her absences. The employee received a warning for these absences on March 13.

On March 19 the employee notified the employer prior to her shift that she was running late, then reported for work several hours tardy. On March 21 she was issued another warning as a result.

The employee was absent with proper notice to the employer on May 4 because her mother, who was scheduled to undergo surgery for cancer, was having a difficult time and wanted the employee's help in preparing an advance directive. On May 8 the employee received a final warning and was notified that any further absences would require medical or emergency documentation.

On June 11 the employee missed work, with notice to the employer, to be with her mother, who had just learned that her cancer had spread and who was too emotional to be left alone. When the employee returned to work the employer asked her for documentation, but the employee indicated she was unable to provide any. The employee's mother had not seen her physician, but had received a telephone call from an assistant reporting lab results, and the employee did not believe any documentation was available to her. The employer advised the employee it would discuss her work history and make a decision about her status. On June 17 the employer notified the employee she was discharged.

The issue presented is whether the employee quit or was discharged and whether she is eligible for benefits based upon her separation from employment.

The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

Both parties agree that the employee was discharged, and the commission sees no reason to find otherwise. While the employee's failure to present the employer with documentation for her last absence was contrary to the employer's directive, the commission does not regard this as conduct so inconsistent with a continuing employment relationship as to evince an intent to quit, particularly given that the employee had no documentation in her possession and did not believe any was available to her. Moreover, the commission notes that, when the employee returned to work the employer indicated it would discuss her work history and make a decision about her status, indicating that the end of the employment relationship was not an automatic result of the employee's failure to provide documentation, but that the employer weighed all of the circumstances and made a decision to sever the employment relationship.

Having found a discharge, the next question to resolve is whether the discharge was for misconduct.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for unsatisfactory attendance and for failing to present the employer with documentation for her last absence. During the last six months of her employment the employee was tardy on four occasions, and was unable to recall the reasons for each instance, except to state that she is the secondary caregiver for her 6-year old nephew and sometimes has to provide transportation for him if her sister is ill. In addition, the employee missed a week of work, with proper notice to the employer, because she had the flu. The employee's remaining two absences related to her need to be with her mother, who had a serious health condition. While the first such absence was probably avoidable, since the record indicates that the employee could have prepared her mother's advance directive on a different date, the employee's decision to miss a day of work to be with her mother when she learned that her cancer had spread was certainly a valid one. Overall, the commission concludes that the employee's attendance record, while clearly unsatisfactory to the employer, did not evince the type of deliberate and substantial disregard for the employer's interests that would warrant a finding of misconduct, nor does the commission believe that the employee's failure to supply the employer with documentation for her final absence amounted to misconduct on her part, particularly given the employee's reasonable understanding that no documentation was available to her.

The commission, therefore, finds that in week 25 of 2002, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2002, provided she is otherwise qualified. She is not required to repay the sum of $3,038.00 to the Unemployment Reserve Fund.

Dated and mailed March 26, 2003
dargaco . urr : 164 : 1 MC 626  VL 1007.01  MC 605.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is not the result of any differing impression of witness credibility, but is as a matter of law.

cc: 
Eastbay, Inc. (Wausau, Wisconsin)
Eastbay, Inc. (Green Bay, Wisconsin)


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