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

JAMES E SIMS, Employee

GERBER AUTO COLLISION AND GLASS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606933MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about seven months as a repair technician for the employer, an automobile repair business.

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

The employee had been warned about his attendance on March 20, 2003, and told at that time that he needed to be at work each day because his absences interfered with the employer's ability to complete repair work on a timely basis for its customers.

The employee was absent with notice on April 4, 2003, in order to attend a court proceeding relating to the award of custody for his three children.

The employee was absent with notice on April 7 and 8, 2003, because he had been evicted from his lodgings and needed to find a place for him and his children to live.

When the employee called in his absence on April 8, he told the employer that he wouldn't be reporting that day and that "the latest I would be at work would be Thursday, April 10."

The employee failed to provide notice or to report to work on April 9.

On April 9, the employee was stopped by police for driving a vehicle with invalid plates, and was arrested at that time for driving without a valid license.

The employee returned to work on April 10 and was discharged at that time for unsatisfactory attendance.

The most that the employer proved here was that the employee was absent without notice and without a valid reason for one day, i.e., April 9. The employee's absences on April 4, 7, and 8 were with notice and for valid reasons. Generally, absences with notice and for valid reasons will not support a conclusion of misconduct. See, e.g., Grijalba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375 (LIRC Feb. 14, 2001). A single absence without notice, regardless of the underlying reason, is insufficient alone, given the employee's work responsibilities here, to support a conclusion of misconduct (See, Stroud v. MJP, Inc., UI Hearing No. 9840055AP (LIRC June 30, 1998); Scoville v. Robinson Brothers Environmental, Inc., UI Hearing No. 03200681EC (LIRC Aug. 29, 2003); Lakes v. Staffing Resources Ltd. Partnership, UI Hearing No. 99606161RC (LIRC Nov. 26, 1999)). A conclusion that the employer failed to sustain its burden to prove misconduct is reinforced by the fact that the employer failed to show that the employee had any reason to be aware that his job would be in jeopardy if he had further attendance deficiencies. See, Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000)(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). The single warning to the employee on March 20 that he needed to show up for work was insufficient without more to fulfill this notice requirement.

Although the employer also testified that the employee was absent on 12 other occasions during his short tenure, not only does the employee dispute this testimony, but the employer failed to offer any evidence from which it would be possible to determine whether these absences were with notice and for valid reasons.

The commission concludes that, in week 15 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2003, if otherwise qualified.

Dated and mailed February 3, 2004
simsjam . urr : 115 : 2    MC 605.05

/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 reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Combined Wage Claim Unit, Freeport IL 61032


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uploaded 2004/02/09