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

BRIAN E STEELE, Employee

WHOLE FOOD MARKET GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005188MD


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 almost two and one-half years as a cook for the employer, a grocery store. He was discharged on September 11, 2004 (week 37).

The employee was a no call/no show on August 27, 2004, because he misread his work schedule. As a result, he received a final written warning which stated that, "If Brian has a second no call no show prior to 8/27/05, his employment will be terminated."

On September 11, 2004, the employee did not report to work his scheduled 8 a.m. - 4 p.m. shift, or provide proper notice of his absence. He testified that he was aware that he was scheduled to work that day but did not check his starting time on the work schedule because it was the employer's consistent practice to advise him personally whenever he was scheduled to start work at a time other than 11 a.m., and this had not been done for September 11. The employer did not rebut this testimony, or the employee's testimony that he reported to work at 11 a.m. on September 11, 2004.

The administrative law judge concluded that two no call/no show absences, the second within 15 days of the first and after a final warning, supported a conclusion of misconduct. The commission disagrees.

One no call/no show absence without a valid reason, followed closely by a second for which the employee proved there were compelling mitigating factors, without more, does not support a conclusion that the employee engaged in misconduct through a substantial and intentional disregard of the employer's interests.

The commission concludes that, in week 37 of 2004, 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 37 of 2004, if otherwise qualified.

Dated and mailed January 7, 2005
steelbr . urr : 115 : 1   MC 605.05

/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 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 interpretation of the relevant law.

 

cc:
Whole Foods Market Group, Inc. (Madison, Wisconsin)
Todd Smith


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/01/18