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

MIKALA O MUNOZ, Employee

LACOSTA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607640MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, the third paragraph of the appeal tribunal's decision is modified to read as follows:

As reasons for the discharge, the employer asserted that the employee had been excessively absent from work, that she was a no call/no show on February 10, and that she had performed unsatisfactory work. However, it was not established that the employee performed any work unsatisfactorily, the February absences prior to February 10 were for valid reasons due to the employee's illness, and the employee did not have sufficient notice that a single no call/no show incident placed her job in jeopardy and would result in her termination.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 7 of 2002, if otherwise qualified.

Dated and mailed April 4, 2003
munozmi . umd : 115 : 1   MC 605.05   MC 665.04   MC 688.1  MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked two months for the employer, a building maintenance company.

The employer has alleged that the employee was terminated because she was insubordinate, because her absences from work were excessive, and because she failed to call or to report for work on February 10.

In regard to the insubordination issue, the employer offered no details other than a statement in one of supervisor Mel Martinez's written warning notices that the employee had failed to follow his instructions. The employee denied that she had done so or that Martinez had ever told her that her performance was unsatisfactory. Martinez did not testify at the hearing. The employee's testimony is the only competent evidence as to this aspect of the case, and it is concluded as a result that the employer failed to show that the employee was insubordinate as alleged.

In regard to the overall attendance issue, the record shows that the employer relied primarily on the employee's absences during February of 2002, and that these absences, other than that on February 10, were for valid reasons due to the employee's illness

In regard to the attendance issue relating to February 10, the employee's testimony that she showed up for work on February 10 and Martinez gave her the discharge letter at that time and told her that she had been terminated is not credible. The record establishes that the letter was created on Monday, February 11, 2002, and that the employee did not show up to work her shift on February 10. However, there is no evidence in the record to show that the employee should have been aware that an unexcused absence or a no call/no show absence would result in termination. The employer did not introduce any policy or rule to this effect, there is no such testimony from Castillon even though he is the human resources director and would presumably have knowledge of such policy or rule, and, in the employee's most recent warning (suspension) for attendance, (exhibit 4), her supervisor did not complete the section on future consequences. The commission has held that an employer is required to place an employee on notice that her job will be in jeopardy if she engages in certain types of conduct in order to sustain its burden to show misconduct. See, e.g., Hainz v. Nelson Industries Inc., UI Hearing No. 00003095MD (LIRC Oct 3, 2000). The only evidence in this regard is the hearsay testimony of Castillon that, when the employee was suspended on January 7, 2002, she was "told that there would be serious consequences if this type of behavior continued," which is not substantiated by any other evidence of record.

The commission concludes that, although the employee did not show up to work her shift on February 10, misconduct has not been shown by the employer because there is no evidence that the employee was on notice that an unexcused absence or no call/no show would result in termination.

 


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