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

RICKY L SCHMALING, Employee

VOECKS BROTHERS ENTERPRISES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401631AP


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 approximately six months as a mason for the employer, a masonry business. He was notified of his discharge on March 17, 2004 (week 12).

The employer had three reasons for its discharge decision. The first reason was not compelling. The employee left the job site on March 15 to go to a neighboring convenience store, along with two co-workers, for a period of approximately five minutes. When he returned, the supervisor told the employee and his co-workers that they were only to go to the convenience store when on break. The employee testified credibly that this was the first occasion on which he had been warned about this issue.

The second reason for the employee's discharge was the employee's decision to leave work two to two and a half hours before the end of his scheduled shift on March 16. The employee had been contacted by his daughter's school and informed that he needed to pick his daughter up because she was sick. He did not ask permission before leaving. There was no supervisor on the job site so the employee could not ask permission. The employee told his co-worker that he was leaving. In this case, the employee had valid and compelling reasons for leaving the work site a few hours early. The employee's failure to ask specific permission to leave amounted to, at most, an instance of poor judgment on his part.

The employee had been warned that he was not to carry his cell phone on the job site. On several occasions after the warning, the employee was heard by the general partner engaged in a cell phone conversation. The employee explained that he continued to carry his cell phone after the warning because his daughter's school had his cell phone as an emergency number. The employee would frequently receive calls about his daughter who was on medication and would frequently act up. When she acted up she might have to be removed from the classroom. The employee stated that he had obeyed the instructions to keep his phone in the car for about a week until he received a call after work that he needed to pick up his daughter. The school told him to remove his daughter because she hit a teacher with a stick. The school was unable to reach her mother and when they could not reach the employee they took his daughter to the principal's office to wait until school ended. The employee needed to ensure that his daughter's school was able to contact him. He should have explained this to the employer so that the employer could have considered alternative arrangements, for example, giving the school the supervisor's number as an emergency contact number. However, the employee's failure in this regard did not demonstrate such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 12 of 2004, the employee was discharged by the employer but that his discharge was not for misconduct 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 12 of 2004, if otherwise qualified.

Dated and mailed February 28, 2005
schmari . urr : 145 : 1 MC 689

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the employee's testimony, that he left work early because his daughter was sick, to be credible. However, the employer's letter to the department dated March 23, 2004, indicates that the employee left work to pick his daughter up at school. The employee's explanation for leaving work a few hours early on March 16 has been consistent, and the commission finds his testimony, which was unrefuted, to be credible. The supervisor was not at work on the after noon of March 16, so the employee could not ask his permission to leave. While the employee should have made some effort to contact one of the general partners, the employee's failure to do so did not rise to the level of misconduct connected with his work.


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