THERESA M WISE, Employee

ABF FREIGHT SYSTEM INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,663 to the Unemployment Reserve Fund.

Dated and mailed December 4, 2003
wisethe . usd : 115 : 1  MC 630.07

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employee received a written warning on Wednesday, February 26, 2003, for excessive tardiness. This warning noted that the employee had been 15 minutes tardy that day and had been tardy five times in the preceding three weeks, and stated that, "if tardiness continues further action will be taken." On Thursday, February 27, 2003, the employee phoned her supervisor at 11:58 a.m. and indicated that she was ill, as she had been for the last couple of weeks, and would not be in to work that day as a result. Her supervisor asked her to call back at 3:00 p.m. and talk to the branch manager. The employee called back at 3:00 p.m., talked to her supervisor instead of the branch manager, and indicated that she was still ill and would not be reporting to work. The employee went to a casino that night and stayed there from 6:00 p.m. to 12:05 a.m. When the employee reported to work the next day, she stated that she had slept all afternoon the day before and had not awakened until 11:00 p.m. The employee was discharged for lying to the employer as to the reason for her absence on February 27.

Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997) (misconduct found where employee represented to employer on the date of absence that she would not be able to report to work due to a family emergency when in fact she engaged in election activities that day); Bohman v. HCI, Inc., UI Hearing No. 99601023MW (LIRC June 22, 1999) (misconduct found where employee represented to employer that unable to participate in required training because of family emergency when in fact employee had traveled to Phoenix to vacation with family).

The employee testified that she was actually too ill to report to work when she spoke to the employer at 3:00 p.m. on February 27, but recovered by 6:00 p.m. The administrative law judge did not credit this testimony, and there is no persuasive reason in the record to overturn this credibility determination. Although the employee testified that she had been suffering from the same condition for weeks, she wants the commission to believe that she underwent a sufficient recovery between 3:00 p.m. and 6:00 p.m. to enable her to spend six hours at a casino. The commission agrees with the administrative law judge that, if she had in fact undergone such a recovery, she should have reported to work at 6:00 p.m. rather than to the casino. It should also be noted that the employee continued her deception by stating to the employer the next day that she had slept all afternoon on February 27 and had not awakened until 11 p.m., when in fact she had been in the casino five hours by that time.

cc: ABF Freight System, Inc. (Madison, Wisconsin)

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uploaded 2003/12/16