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

CHERYL A HOHL, Employee

KOFFEE KUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007525MD


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:

The ninth and following sentences in the third paragraph of the Findings of Fact and Conclusions of Law section are deleted and the following substituted for them:

[The employer knew that she was receiving treatment and medicinal shots in her back] The employee's boyfriend called the employer on October 1, 2002, and told the owner that the employee was in jail. The owner advised the boyfriend that the employee was fired.

The second paragraph on page 2 is modified to read as follows:

Absences for valid reasons and with proper notice are not misconduct. This is the case at hand. Except for a period of absence in March and the October 1, 2002, absence, the employee's absences were due to illness and were with proper notice. She provided the employer with reasons for her absences and doctor's excuses for much of the missed time, even though she was not required to do so. Given this history, this tribunal cannot find that the employee's discharge was for misconduct.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. The issue of whether the employee was able and available for work is remanded to the department for further consideration in accordance with this decision.

Dated and mailed April 25, 2003
hohlche . umd : 115 : 1   MC 605.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The employee worked for approximately eight months as a dishwasher for the employer, a restaurant.

The employee had frequently been absent for health reasons. She provided proper notice of these absences and provided medical excuses for some even though the employer had not requested verification. The employee suffers from bulging discs and migraine headaches. On September 23, 2002, the employer gave her a final written warning which stated that she would be terminated for any further occurrences of "calling in sick - flu or back - just plain calling in." The employee's only non-health-related absence occurred in March when she was absent due to her arrest and incarceration on outstanding warrants.

On October 1, 2002, the employee was scheduled to begin her shift at 8 am. Her boyfriend called after 8 am to notify the employer that the employee was in jail and would not be reporting for her shift. The employer did not ask the reason for the employee's incarceration and notified the boyfriend that the employee was terminated. The only further contact between the employee and employer occurred when she picked up her final paycheck.

The employee had valid reasons for all but two absences. The employee provided proper notice for both of these absences. Regardless of the validity or invalidity of the employee's reasons for these absences, two properly noticed absences without valid reasons over a period of eight months, without more, would not support a finding of misconduct under the circumstances present here. See, e.g., Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375MW (LIRC Feb. 14, 2001) (no misconduct for attendance failures where, even though employee had a significant number of absences, virtually all of them were due to the illness of her or her daughter and those unrelated to illness were tardies due to oversleeping); Trentadue v. Racine Railroad Products Inc., UI Hearing No. 01607062RC (LIRC Nov. 20, 2001) (employee's rate of absenteeism excessive but no misconduct where 23 of 26 absences due to the illness of her or her son, one to court appearance, one to tardiness without explanation, and one to have lunch with son); Stoughton Trailer, Inc., v. LIRC (Eugene Winger), Case 97 CV 1180 (Dane Co. Cir. Ct., Jan. 12, 1998) (no misconduct where most absences due to illness and few others to transportation problems). The employer did not have an employee attendance policy, and the employee's position did not involve a special duty of care or unique skills. The employer's written warning, although it provided notice to the employee that her job would be in jeopardy if she had further absences, would not by itself provide reasonable justification for the employer's discharge action where the proper inquiry is whether the employee's overall attendance record establishes that she engaged in misconduct. The commission concludes that it did not.

 


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