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

RONALD L KAHL, Employee

KNIGHT MFG CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008166JV


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 43 of 2002, if otherwise qualified.

Dated and mailed May 16, 2003
kahlron . usd : 115 : 9  MC 605.01   MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked for two and a half years as a welder for the employer.

The issue here is whether the employee's discharge was for misconduct connected with his employment.

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). Neither the employer's attendance policy (which is essentially silent in this regard), nor the progressive disciplinary practice it had followed in regard to the employee's past attendance (which put the employee on notice each time that further incidents would result in further discipline, including suspension or termination), would have put him on notice that another day of absence, even without a valid reason, would result in immediate termination.

The employer, in its petition, contends that the administrative law judge would not permit her "to present a significant portion of the attendance records that led up to the termination." However, exhibit 1 is the employer's record of the employee's attendance since March of 2000, and exhibits 2 and 3 consist of the written warnings issued by the employer during the subject attendance review period. There is nothing in the employer's testimony which would suggest that there were attendance records or documents other than these which would be relevant here, i.e., the hearing exhibits correspond to the employer's recitation of the employee's relevant attendance history and the actions of the employer to address it. There is nothing in this testimony to suggest, for example, that the employee was notified either directly or through the imposition of a disciplinary suspension that he would be terminated for his next absence without a valid reason.

The commission concludes that, because the employer failed to show that the employee was aware or had reason to be aware that his job was in jeopardy, misconduct has not been shown.

 


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uploaded 2003/05/27