BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

TOD O. ROUSSEAU, Employee

Involving the account of

COUNTRYSIDE AUTO BODY AND SALES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-402495 AP


The Department issued an Initial Determination which held that in week 16 of 1989, the employe was discharged but that the discharge was not for misconduct connected with his work. The employer timely appealed and a hearing was scheduled for August 3, 1989, at which time only the employer-appellant appeared. An Appeal Tribunal Decision was issued and mailed on August 21, 1989, which reversed the Initial Determination and denied benefits. Within 21 days the employe-respondent filed a request for a rehearing on the merits. The Appeal Tribunal Decision was then set aside for further consideration of that request. The Appeal Tribunal found that the employe-respondent had good cause for his failure to appear at the hearing because he did not receive his hearing notice.

A second hearing was then scheduled for September 20, 1989, at which time only the employe-respondent appeared. The Appeal Tribunal Decision found that the employer did not establish that its failure to appear at the second hearing was with probable good cause, within the meaning of sec. 108.09 (4)(i), Stats., and Chapter ILHR 140 of the Wisconsin Administrative Code.  As a result, the Initial Determination which allowed benefits, remained in effect. The employer-appellant petitioned for Commission review.

The Commission remanded the case for the purpose of taking testimony with respect to whether the employer had probable good cause for its failure to appear at the second hearing, and provisionally, with respect to the merits of the case. Only the employer appeared at the hearing which was held on November 14, 1990.

Based on the applicable laws, records and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


EMPLOYER'S FAILURE TO APPEAR:

The employer did not appear at the hearing because the office manager wrote the wrong hearing date on her desk calendar, but did appear at the hearing office the next day for the hearing. She was told it had already been held. Under the circumstances, the Commission finds the employer has demonstrated that it had good cause for its failure to appear.

MERITS:

The employe worked for about nine months as an auto body repair person for the employer, a body shop and truck sales business. His last day of work was April 12, 1989 (week 15).

The employe had been more than fifteen minutes late for work on many occasions. In addition, he was absent on numerous occasions and absent for a half day on four occasions. He did not contact the employer to report his absences on these occasions. The employe had been warned frequently that his attendance was unacceptable, but even after warnings, the employe did not improve his attendance.

The employe stated that his absences were due to sickness, and that when he was late it was because of traffic and road conditions. However, it is highly unlikely that traffic would cause him to be from one to four hours late, on such a frequent basis. The employe could also have left home earlier in order to be able to arrive at work on time. Furthermore, be continued to be absent without calling in even after he had been warned about his attendance. He could simply have called the employer before the start of his shift if he were ill.

The employe also refused to work overtime when asked, but would also refuse to punch out at the end of his shift when his supervisor was not at the workplace.

Under the circumstances, the employe's continued failure to call in sick before the start of his shift, and his continuously arriving late for work despite repeated warnings, evinced a wilful and substantial disregard of his employer's interests and of the standards of conduct that the employer had a right to expect, and therefore constituted misconduct connected with his work, within the meaning of sec. 108.04 (5), Stats.

The Commission further finds that the employe was paid $152 for each of weeks 18 through 32 of 1989 for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03 (1), Stats., and that, pursuant to sec. 108.22 (8) (a), Stats., he is required to repay the sum of $2,280 to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 16 of 1989, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,280 to the Unemployment Reserve Fund.

Dated and mailed January 31, 1991
145 : CD6032   PC 712.2  MC 605.05  - Hearing, Failure To Appear - mis-marked calendar mismarked calendar

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

 

NOTE: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to the contribution employer's account shall be charged to the fund's balancing account and for a reimbursement employer, to the fund's administrative account.

Although the Commission conferred with the Administrative Law Judge regarding the credibility of the witnesses, the Commission reversed the Appeal Tribunal decision as a matter of law in that it has determined that under some circumstances, the mismarking of a calendar can amount to probable good cause for the failure to appear at a hearing, within the meaning of sec. 108.09 (4), Stats.

The Commission agreed with the assessements of the Administrative Law Judges, that the employer's testimony was credible.


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