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

JASON A NESS, Employee

DELI-MORE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403062GB


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 28 of 2002, if otherwise qualified.

Dated and mailed April 10, 2003
nessjas . usd : 115 : 1  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 less than four weeks for the employer, a restaurant.

The issue is whether the employee's separation was a quit or discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee was a no call/no show for two days, he provided no explanation for his failure to call the employer, and he did not make an effort to maintain the employment relationship when the employer asked him on July 11 whether he was going to work. On the other hand, the employer did not have an attendance policy regarding failure to report an absence or failure to report for a scheduled shift, the employer had freely granted the employee's previous requests for time off, the employee had received no warnings about his attendance and had no reason to be aware that his job would be in jeopardy if he failed to report to work on July 10 and 11, and it would have been obvious to the employer on July 11 that the employee's girlfriend had given birth and the employee was assisting her, a valid reason for absence.

The commission has been consistent in holding, other than in the most egregious cases, of which this is not one, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979) The employer's attendance policy here is seriously lacking, and the commission concludes that the employee was not aware and had no reason to be aware that failure to provide notice or to report for his shift for two days would result in immediate termination.

Regarding the quit versus discharge issue, the employee certainly could have made more of an effort to clarify and preserve the employment relationship during his appearance at the restaurant on July 11. However, the record supports a conclusion that the employer "dismissed" the employee before it could reasonably be said that the employee's actions had severed the relationship.

In the petition, the employer takes issue with reliance on the UCB-474 form signed by the girlfriend's obstetrician which states that the employee was present with her at the hospital from July 7 until her discharge on July 11. However, there really is no dispute that the employee was present at the hospital but that his presence wasn't required, and this fact does not affect the outcome here.

The commission affirms the decision of the administrative law judge that the employee was discharged but nor for misconduct.

cc: 
Attorney Korey C. Lundin
Jason A. Ness


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