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

FREDERICK D HARMON, Employee

AMERITECH SERVICES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607385MW


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 about 18 months for the employer, a telephone company. The employee worked as a maintenance administrator. His work involved taking telephone calls from customers regarding problems with telephone, internet and voice mail services. His last day of work was April 29, 2002. He was discharged on May 30, 2002 (week 22).

The employer made the decision to discharge the employee because of his accumulated record of attendance violations under the employer's "Attendance Control Program". The employee's attendance violations were occasions of being late to work. The employer measured the timeliness of an employee's arrival at work by the time at which the employee initially logged into the telephone system, which they were expected to do as soon as the arrived at their workstation.

Under the employer's "Attendance Control Program" there is no disciplinary consequence for lateness of up to 2 minutes and 59 seconds. Logging in 3 or more minutes late is considered an occurrence of tardiness.

The employee was 50 minutes late to work on May 22, 2001. He was 13 minutes late to work on June 13, 2001. He was 30 minutes late to work on June 22, 2001. He was 7 minutes late to work on September 17, 2001. He was 6 minutes late to work on September 28, 2001. He was 55 minutes late to work on November 9, 2001. He was 38 minutes late to work on December 3, 2001.

Following the employee's tardiness on December 3, 2001, he was given a 1-day disciplinary suspension and placed at "Step 2" under the employer's "Attendance Control Program." He was informed that if he incurred any chargeable absence by December 24, 2002, it could result in his being given a 3-day disciplinary suspension and being placed at "Step 2" under the employer's "Attendance Control Program."

The employee had not had any further attendance infractions by December 24, 2002, and as a result his status under the employer's "Attendance Control Program" was reduced to "Step 1."

The employee continued without any further attendance infractions, until January 22, 2002, when he was 4 minutes late to work. He was late that day because the person who normally gave him a ride to work backed out on him at the last minute and he had to take a cab. As a result of this tardiness, the employee was given a 1-day disciplinary suspension and placed back at "Step 2" under the employer's "Attendance Control Program."

The employee was then 6 minutes late to work on January 31, 2002. He did not recall what the reason for this tardiness was. As a result of this tardiness, he was given a 3-day disciplinary suspension and placed at "Step 3" under the employer's "Attendance Control Program."

The employee then went almost three months without any further attendance infractions. Then, on April 29, 2002, he was recorded by the employer's system as having logged in to work 3 minutes and 43 seconds late. Because this was an occasion of tardiness under the employer's "Attendance Control Program," and because the employee had already been at "Step 3" under that program, he was terminated.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

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 Wisconsin Supreme 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."

While the employee's tardiness was clearly viewed as unsatisfactory by the employer, there is no basis to find that it was intentional conduct on the part of the employee. On some occasions, such as his tardiness on January 22, 2002, his tardiness was caused by events outside of his control. Mostly, it appears that the employee's tardiness was the result of the employee failing to take the kind of care and make the kind of preparations that are necessary to ensure timely arrival at work.

Certainly, a continuing pattern of such carelessness with regard to timely arrival at work can be considered "misconduct." However, more should be looked at in determining whether there is such a pattern, than a mere totaling of the number of occurrences of attendance problems within a fixed period of time. Because the question of an employee's intent and attitude is so important in deciding whether there has been "misconduct," it is necessary to consider whether an employee's pattern of attendance shows any trend towards improvement, signaling a serious effort by the employee to correct a past problem of poor attendance. Thus, it is significant where an employee significantly improves his attendance in his last several months of employment. Recent good attendance can overcome an earlier, poor attendance record. Voight v. Schreiber Foods Inc. (LIRC, Dec. 28, 1999). Between May 22 and December 3, 2001, the employee was tardy on 7 different occasions, for a total time of over 3¼ hours.  In the period of almost 5 months that followed until the end of his employment, he was tardy on only 3 occasions, and for a total time of only 13 minutes.  The serious problem which this employee had with tardiness in 2001 was thus much improved in 2002. It is evident from this that he was making a genuine attempt to meet the employer's expectations.

In addition, the commission believes that assessing the degree of seriousness of an occasion of tardiness should involve consideration of the amount of time involved. The final few instances of tardiness which precipitated the employee's discharge here were of very short periods. The employer did not even treat lateness of up to 2 minutes and 59 seconds as deserving of a disciplinary response. The employee had not had any significant tardiness since December 3, 2001, when he was 38 minutes late. Following that incident, and the discipline which was imposed for it, the employee by and large maintained a pattern of timely arrival at work, being late by just a few minutes on just 2 occasions in January, 2002, and then maintaining a perfect record of no tardiness until April 29, 2002, when he exceeded the employer's expectation for timeliness of arrival by only 44 seconds. The commission agrees with the ALJ, that it was not established that the employer's interests were significantly affected given the amount of time by which the employee was recorded as having been late in comparison to the threshold amount of time within which the employer does not consider lateness to warrant any disciplinary response.

In view of these considerations, the commission cannot conclude that the employee showed "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 that he showed "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."

The commission therefore finds that in week 22 of 2002, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2002, if otherwise eligible. No repayment of benefits is required.

Dated and mailed April 8, 2003
harmofr . urr : 110 :  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


NOTE: The commission agreed with the ALJ's conclusion that the discharge of the employee was not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). It has substituted its own findings of fact for those made by the ALJ in order to more fully set forth the reasons that it agreed with the ALJ's conclusion on the misconduct question. 

cc: 
Labor Management Consultant, By: Robert C Tibbits
Ameritech Services - Milwaukee, WI


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