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

DION C THALER, Employee

KETTLE MORAINE EXTERIORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605761WB


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 ineligible for benefits beginning in week 22 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 $2,261 to the Unemployment Reserve Fund.

Dated and mailed February 11, 2004
thaledi . usd : 115 : 1  MC 626  MC 605.09 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The record shows that the employee's attendance record was dismal: he was absent the week of 4/7-4/11/03 because he was jailed on a probation hold for admittedly getting in a fight with his father, and provided notice of this absence only once at the beginning of the week; he was absent the week of 5/5-5/10/03, two days because he was feeling stress due to a personality conflict with a co-worker, and the remaining days because he was having problems with his car; and he was absent the week of 5/19-5/24/03 because he continued to have car problems, and he called in three times that week, on the 19th or 20th, the 22nd, and the 24the.

The first issue is whether the separation was a quit or a discharge. It is apparent from the record that both the employee and the employer expected that the employee would be reporting to work on 5/19/03, i.e., that the employment relationship still existed on that date. Moreover, the fact that the employee continued to provide notice of his absences the week of 5/19-5/24/03, even though not daily, militates against a conclusion that he intended to quit, or that his actions were inconsistent with the continuation of the employment relationship. The employer's policies provide that two days of no call/no show absence would be regarded as a resignation, but the employee was apparently careful to avoid that result during his last week by calling in his absences every second day. See, e.g., Guess v. Village of Miscoda-Grant County, UI Hearing No, 90-003206DV (LIRC Oct. 9, 1990) (although distinction between quit and discharge not always clear, separation for pattern of unexcused absences a discharge, but for failing without notice to report for work a quit-providing notice of subject absence shows employee did not intend to quit); Sonnentag v. Liberty Homes, Inc., UI Hearing No. 98000411EC (LIRC Nov. 3, 1998) (key element to distinguishing quit and discharge is employee's intent-reporting for next shift shows employee did not intend to quit and separation for leaving prior shift early without notice is a discharge); Darga v. Eastbay , Inc., UI Hearing No. 02006296GB (LIRC March 26, 2003) (separation for unsatisfactory attendance and for failing to provide documentation for final noticed absence a discharge); Rowe v. Truserv Corp., UI Hearing No. 99002104MD (LIRC Feb. 17, 2000) (5 days of no call/no show absence demonstrates actions inconsistent with continuation of employment relationship and is a quit). The commission concludes that the separation here was a discharge.

The next issue then is whether the employee's discharge was for misconduct. The employee did not have a valid reason for his absences the week of 4/7-4/11, since he admits that he got into a fight which violated the terms of his probation. The employee did not have a valid reason for missing at least 8 days of work with car problems. Although isolated instances of car trouble or traffic delays may constitute valid reasons for absence or tardiness, a pattern of such instances does not, and it is an employee's responsibility to arrange for reliable transportation to work. See, Rincon v. Bank One Wisconsin, UI Hearing No. 01607055MW (LIRC March 12, 2002). The employee failed to consistently provide notice that he would be absent. The employer provided ample notice to the employee that his job would be in jeopardy if his attendance did not improve. The employee's record of absences without notice and without valid reasons supports a conclusion of misconduct here.

 


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uploaded 2004/02/16