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

DERRICK J GRIGNON, Employee

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401541GB


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 for three months for a client of the employer, a temporary service business. He worked third shift, Sunday through Thursday evenings. He was absent with notice on Monday, October 6, 2003 and on Sunday and Monday, November 2 and 3, 2003 due to illness. He was absent without any notice on Sunday, November 30, 2003 and was verbally warned on Monday, December 1, 2003. On Tuesday, December 30, 2003 the employee did not have transportation to work and notified the employer of his situation. He was immediately discharged. Following the discharge, the employee filed for and received unemployment insurance benefits.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits. As such, the issue is whether the employee's discharge was for misconduct connected with his employment.

Misconduct connected with 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). Absences that are due to illness cannot be deemed intentional for purposes of the misconduct definition. Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Dec. Hearing No. 00608375MW (LIRC February 14, 2001). Further, in Sprouse v. Sears Roebuck & Co., UI Dec. Hearing No. 97601992MW (LIRC January 30, 1998), the commission found that an employer's testimony regarding the employee's reasons for absence was admissible under the rules of evidence as admissions by a party opponent pursuant to Wis. Stat. § 908.01(4)(b). Thus, the commission will not consider the absences due to illness and with notice in determining whether the employee's discharge was for misconduct connected with the employment.

The commission finds that the employee's two remaining absences in his three month employment simply do not rise to the level of misconduct. In addition to his one absence without any notice or apparent valid reason, which is not sufficient to constitute misconduct, see Lakes v. Staffing Resources SC Ltd. Partnership, UI Dec. Hearing No. 99606161RC (LIRC November 26, 1999), the employee only had one absence due to transportation difficulties and with proper notice. Transportation problems do occasionally occur and the commission does not find that one incident of such failure, in light of the employee's overall attendance, evinces a wilful or intentional disregard of the employer's interests or of the standards of conduct that it has a right to expect.

The commission therefore finds that in week 1 of 2004, the employee was discharged but not for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2004, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 11, 2004
grignde . urr : 150 : 2    MC 605.05 MC 605.09  PC 714.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing the decision in this matter, because the reversal is not based upon a differing view as to the credibility of witnesses. Instead, the reversal is based upon a differing legal conclusion as to whether the employee's attendance record constitutes misconduct.

cc: Moore Response


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