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

LA DASKA BROWN, Employee

BANC ONE SERVICES CORP., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608791MW


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, if otherwise qualified.

Dated and mailed April 11, 2003
brownla . usd : 110 : 1    MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee, a bank teller who had worked for the employer for about 2½ years, was discharged because of her attendance record. The question presented is whether her discharge was for "misconduct" within the meaning of Wis. Stat. § 108.04(5).

The employee did have many attendance violations in 2001, but her performance in that respect had begun to improve. After an absence on November 26, 2001, she had no attendance violations for months. (1)   She did not have another chargeable occurrence under the employer's attendance policy until April 11 and 25, 2002, when she had short (10 minutes, 6 minutes) tardinesses. These were not her fault, though, in that they were caused by her babysitter being late in arriving, which meant that the employee could not leave in time to get to work on time. Then, she had absences on May 20 and 21, 2002; however, these too were not her fault, but were caused by her babysitter backing out on her. The employee also gave her employer timely notice that she would be unable to work on these days.

The timing and spacing of the employee's attendance infractions showed a real and definite trend towards improvement over the period in the past when she had frequently been tardy. A mechanical "no-fault" attendance policy which merely tallies up the number of attendance infractions over a period of time does not necessarily reflect such trends, but they are something which the commission believes is highly relevant to determining whether a discharge for attendance problems was for "misconduct". The commission has held that it is significant where an employee improves his attendance in his last several months of employment, and that recent good attendance can overcome an earlier, poor attendance record. Voight v. Schreiber Foods Inc. (LIRC, Dec. 28, 1999). This is a case in which it is appropriate to apply that principle.

The tardiness and absence in April and May 2002 that really caused Brown's discharge were regrettable, and it is understandable that given its attendance policy the employer would conclude that it had to terminate her, but those tardinesses and absences cannot be said to have reflected an intentional disregard on Brown's part of her employer's interests, or to have reflected the kind of serious, repeated negligence on her part that would justify a conclusion of misconduct.

For the foregoing reasons, the commission believes that the ALJ's conclusion of no misconduct was appropriate, and it agrees with and adopts it as its own.

cc: Bank One Services, Corp. (Milwaukee, Wisconsin)


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Footnotes:

(1)( Back ) While the employee was issued a "Written Counseling" on January 23, 2002, this was not because of any new violations, but because a request that she had made for certain absences in 2001 to be treated as FMLA leave, was denied, so that those absences counted for points in the employee's previous "rolling year" under the employer's attendance policy. See, Ex. 1 p. 4.

 


uploaded 2003/04/18