DORSEY L JACKSON, Employee

THE WACKENHUT CORPORATION, Employer

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:

The employee worked more than 16 months as a security officer for the employer, a contract security business. His last day of work was December 23, 2004. He was discharged on December 29, 2004 (week 1 of 2005).

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

The employee was aware that the employer's rules require four hours' notice of an absence.

The employer's progressive discipline policy, of which the employee was aware, provides for a written reprimand for the first attendance violation, a 3-day suspension for the second, and termination for the third.

On April 24, 2004, the employee called in 35 minutes before the start of his scheduled shift to provide notice that he would not be reporting to work that day because he had just decided to travel with other family members to attend his sister's college graduation in Tennessee the following day and they intended to leave immediately.

The employee received a written reprimand for failing to provide four hours' notice of his absence on April 24.

On June 7, 2004, the employee was 50 minutes late for work; on June 12, he was 34 minutes late; and, on June 13, he was 16 minutes late. He was late on all three occasions because he had missed the bus. The employee received a written warning for these three incidents of tardiness.

On or after December 10, 2004, the employee's schedule was changed from second shift to first shift. The employee experienced difficulty adjusting his sleep pattern after this change.

The night of December 23/24, 2004, the employee set the alarm on his cell phone but failed to plug the phone in completely. As a result, the alarm did not go off and the employee did not awaken until 10 a.m. on December 24, three hours after the start of his scheduled 7:00 a.m. shift. The employee immediately called in and was told not to report to work that day.

The employee was discharged on December 29, 2004, for unsatisfactory attendance.

The employee did not have valid reasons for failing to provide the required four hours' notice for his absences of April 24 and December 24, or for his three incidents of tardiness in June of 2004.

However, there are mitigating circumstances associated with the December 24 incident. Specifically, the employee was experiencing sleep problems associated with the employer's recent change in his schedule, and his alarm did not go off that morning. See, Downs v. Quality State Oil Co., Inc., UI Hearing No. 98400938EC (LIRC Aug. 12, 1998) (although oversleeping not a valid reason for absence, fact that employee's alarm did not go off as the result of power failure is factor mitigating degree of employee's fault).

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). The employer's attendance policy stated that progressive discipline, i.e., written reprimand, 3-day suspension, and termination, would be imposed for violations of its attendance policy. The warning the employee received in June of 2004 stated that, in regard to "the pattern you have followed in the above seven day period," suspension and/or termination would result "should this happen again." Even if the incident of December 24 were considered an incident of tardiness, the employee did not have a "pattern" of tardiness after June of 2004, and, in fact, did not even have an incident of tardiness or any other attendance violation for a period of more than six months. It would have been reasonable for the employee, given the employer's attendance policy and the June 2004 warning, to have concluded in December of 2004 that the consequence for his next attendance violation would be suspension, not termination, i.e., the record does not support a conclusion that the employee was aware or should have been aware in December of 2004 that his job would be in jeopardy upon his next violation of the employer's attendance policy.

The remaining question then is whether the employee's record of attendance violations was sufficiently egregious to support a conclusion of misconduct in the absence of sufficient notice that his job was in jeopardy. Two late notices and three incidents of tardiness over a period of eight months, particularly where, as here, there were mitigating circumstances associated with the final incident and the employee had no attendance violations for a period of more than six months prior to the final incident, would not support such a conclusion.

The commission concludes that, in week 1 of 2005, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2005, if otherwise qualified.

Dated and mailed May 12, 2005
jacksdo . urr : 115 : 4   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.

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uploaded 2005/05/16