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

JOE E GAMESON, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002237LX


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 in various positions for approximately ten years for the employer, a retail business. He most recently worked as a clerk and his last day of work was March 23, 2004 (week 13), when he was discharged for violating the employer's "no fault" attendance policy. After the discharge, the employee filed for unemployment insurance benefits.

The absence occurrences leading to the employee's violation of the employer's no fault attendance policy were: a partial absence due to illness and with notice; an absence of an entire shift due to illness and with notice; a no-call/no-show because the employee did not realize he was scheduled to work, a 53 minute tardiness and two incidents of leaving early without covering his shift. These absences occurred in the last 15 months of the employee's work. During this same 15-month period, the employee had five separate months without any attendance violations. In addition to the actual absences, the employee was also assessed attendance points for violations of the employer's policies regarding "swiping" the time clock and taking breaks timely.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for the immediate payment of unemployment insurance benefits. Misconduct connected with the employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The issue to be decided is whether the employee's discharge was for misconduct.

The employer contended that the employee's attendance record constituted misconduct connected with the employment. The employee did not appear for the hearing but petitioned the appeal tribunal decision. The employer's contention cannot be sustained. In Rosenogle v. Walker Stainless Equipment Co. Inc., UI Hearing No. 03008303BO (LIRC July 7, 2004), the commission stated:

mere proof of absence, however frequent, does not create a presumption of misconduct. That is particularly true where the employer has a "no fault" attendance policy by which all tardiness and absence is treated the same, regardless of the reason. Godbolt v. Hondo, Inc. (LIRC, June 11, 1999). Misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. Simmons v Klemm Tank Lines (LIRC, June 30, 2003).

To determine the reasons for absence where a worker does not appear at the hearing, the commission has relied upon the reasons given by the employee to the employer. Sprouse v. Sears Roebuck & Co., UI Dec. Hearing No. 97601992MD (LIRC January 30, 1998). Additionally, the commission does not treat one no call/no show sufficient by itself to constitute misconduct. Lakes v. Staffing Resources SC Ltd. Partnership, UI Dec. Hearing No. 99606161RC (LIRC November 26, 1999). Further, in Grignon v. Kelly Services Inc., UI Dec. Hearing No. 04401541GB (LIRC August 11, 2004), the commission found one no call no show and one absence due to a lack of transportation in a three month employment did not constitute misconduct.

The commission finds that the employee's absence violations are similar in proportionality to Grignon. The employee had four invalid absences over a 15- month period. The commission finds that this record does not evince a wilful or intentional disregard of the employer's interests so as to constitute misconduct. Instead, the employee failures exhibit isolated incidents of poor judgement not equaling misconduct.

The commission therefore finds that in week 13 of 2004, the employee was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 13 of 2004, if otherwise qualified.

Dated and mailed August 31, 2004
gamesjo . urr : 150 : 1  PC 714.07 MC 605.05 MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing the decision. The commission's reversal is not based upon any differing view as to credibility but, instead, the reversal is based upon a differing legal conclusion as to whether the employee's attendance record constituted misconduct.


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uploaded 2004/09/08