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

TONIKE L BROWN, Employee

WISCONSIN HOSPITALITY GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609901MW


On October 29, 2002, the Department of Workforce Development issued an initial determination which held the employee's discharge was not for misconduct for unemployment insurance purposes. The employer filed a timely request for hearing on the adverse determination, and hearing was held on December 18, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On December 20, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a little under a year as a hostess for the employer, a restaurant. The employer discharged her on October 14, 2002 (week 42), and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employer essentially discharged the employee for four attendance failures between May 9, 2002 and October 11, 2002, a period of just over five months. On May 9, 2002, the employee was scheduled for an "on call" shift. In such situations, the employee was supposed to telephone the employer to see whether she had to work on that particular day. The employee did not call the employer that day, and thus received a written warning for an absence without notice. The employee is properly accountable for this attendance-related failure. The employer's characterization of the attendance failure as an absence without notice is overly broad, however; the employer did not establish that the employee in fact was to have worked that day.

On May 19, 2002, the employee was 45 minutes late to work essentially because of time mismanagement. The employee had telephoned the employer to indicate that she would be late to work because she was on the other side of town at 4:30 (her shift started at 5:00) and she still had to go across town and drop her son off at the babysitter. The employee is accountable for this attendance failure as well. By her own admission, this instance of tardiness was due to her failure to have returned home with sufficient time to take her son to the babysitter and timely report to work.

The employee is less culpable for the remaining two attendance failures for which she was discharged. The employee missed two shifts of work on August 24, 2002, because she had no babysitter for her son. Occasional inability to arrange for child care is simply a fact of parenting, however, and such absences, particularly when they happen only rarely, simply are not an intentional failure by the employee/parent.

The incident precipitating the discharge was the employee's late arrival to work on October 11, 2002. She was approximately 40 minutes late, because of transportation difficulties. The brakes in the employee's automobile needed repair, and she had arranged for an acquaintance to make the necessary repairs. The acquaintance did so, but would not release the employee's automobile to her until she had paid him for his work, which she was not able to do until October 12. For this reason, the employee had to rely on public transportation in order to get to work on October 11, and thus was late.

The employer asserted that the employee in fact drove her own automobile to work on October 11, and thus should not be allowed to blame that instance of tardiness on the public transportation system. Even accepting the employer's argument, however, the employee's culpable conduct is insufficient to warrant a finding of misconduct.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Even granting culpability to the employee for the instance of tardiness on October 11, the employee's remaining culpable conduct is one additional instance of tardiness and one failure to call in to see whether she was scheduled to work. This is three minor attendance failures in the last five months of employment, and as a matter of law is insufficient to meet the standard for misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 42 of 2002, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 42 of 2002, if she is otherwise qualified. The initial Benefit Computation (Form UCB-700) issued on October 15, 2002, is reinstated. As a result of this decision, there is no overpayment of benefits.

Dated and mailed June 24, 2003
brownto . urr : 105 : 1  MC 678

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. As a matter of law, the employee's attendance-related failures are insufficient to constitute misconduct for unemployment insurance purposes.


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uploaded 2003/06/27