MICAHEL J KLEIBER, Employee

R & R SERVICE OF WEST ALLIS 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 employe is ineligible for benefits beginning in week 31 of 1997, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not. occurred.

Dated and mailed March 19, 1998
kleibmi . usd : 132 : 7   MC 605.091  MC 626

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James R. Rutkowski, Commissioner

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he was discharged from his employment and for misconduct connected with his work. The employe maintains that after his April and May absences he was merely informed that if he had to miss work he had to call in. The employe argues that his subsequent absence was with notice to the employer and therefore the employe did not violate procedures set forth by the employer. However, for purposes of determining whether the employe was discharged for misconduct connected with his work, the question is whether the employe engaged in action which amounted to an intentional and substantial disregard of the employer's interests. Merely because the employe gave notice of his absence did not mean that his extended absence from work was not in substantial disregard of the employer's interests. The employe had an unsatisfactory attendance record. The employe was initially absent without notice and for absolutely no valid reasons. The employe thereafter was again absent without valid reason. The commission has consistently held that an individual who is incarcerated due to his own culpable behavior, thereby absenting himself from work for an extended period of time, has engaged in misconduct connected with his work. See Lambert v. Bridestone/Firestone, Inc., UC Hearing No. 91-608993 (LIRC May 20, 1992); Schweikert v. Ganton Technologies, Inc., UC Hearing No. 91-606281 (LIRC March 24, 1992).

The employer's business needs required that a replacement be hired for the employe. The employer was not obligated to continue the employe's employment when the employe was unable to fulfill the essential part of the employment agreement, that he would perform services for the employer. The mere fact that the employe gave the employer notice that he would be absent on the final occasion does not mean that the employe has thereby acted with regard for the employer's interests.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: 
Attorney Robert E. Wrenn
Wrenn Wille Gregory & Lundeen

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