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

IRIS L HENDERSON, Employee

AURORA SINAI MEDICAL CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04610629MW


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 three years as a dietary assistant for the employer, a hospital. She was discharged on October 28, 2004 (week 44) for unsatisfactory attendance.

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

The employee's attendance record during the final year of her employment shows as follows:

DATE

OCCURRENCE

OF NOTE

10/7/03

late 15 minutes

 

10/17/03

left early

ill

11/13/03

late 20 minutes

 

2/6/04

absent

did not arrange care for her child in advance of shift

2/22/04

left early

ill

2/23/04

no call/no show

misread schedule

3/19/04

absent

family emergency—uncle killed

4/10/04

late 14 minutes

 

4/14/04

1st step warning

based on 2/6, 2/22, 2/23, and 4/10 occurrences

4/25/04

late 15 minutes

 

4/26/04

late 20 minutes

 

4/26/04

2d step warning

based on 4/25 and 4/26 occurrences

6/25/04

late

 

7/1/04

no call/no show

injured in accident on way to work—asked co-worker to notify supervisor

7/3-6/04

absent

recovering from injuries

8/19/04

absent

medical appointment

8/24/04

3d step warning

based on 7/1 and 7/3-6 occurrences

8/25/04

late 7 minutes

 

10/24/04

late 7 minutes—punched in 17 minutes after start of shift when took break from starting tray line

missed the bus

The employer has a policy, of which the employee was aware, that workers will be granted a 5-minute grace period, i.e., that tardiness of 5 minutes or less will not be considered an occurrence for purposes of the employer's attendance policy.

The employee was on notice, as the result of the August 24 third step warning, that an additional occurrence (one absence or two tardies) within the next six months would result in disciplinary action, up to and including termination.

The employee's overall attendance record does not support a conclusion of misconduct. In her last six months of employment, after her May 26 warning, she was tardy three times (on June 25 for a length of time the employer failed to establish; and on August 25 and October 24 for 7 minutes, i.e., just 2 minutes longer than the grace period); was a no call/no show on July 1 but had a valid reason, i.e., sustaining an injury on the way to work, both for the absence and for the failure to provide notice; and was absent with notice for five days for a valid reason, i.e., her recovery from, and treatment for, the injuries she sustained in the July 1 accident.

Three minor instances of tardiness over a six-month period of time, even taking into account the employee's prior attendance deficiencies, does not support a conclusion, within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), that the employee engaged in an intentional and substantial disregard of the employer's interests.

The commission concludes that, in week 44 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 44 of 2004, if otherwise qualified.

Dated and mailed March 11, 2005
hendeir . urr : 115 : 1  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 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 conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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