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

JERRY L WILLIAMS, Employee

SUNSHINE CLEANERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600483MW


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 about one year as a janitorial worker for the employer, a firm engaged in providing cleaning services at a hospital. His last day of work was October 12, 2004 (week 42). During the course of the employment, the employee was absent from work without notice on numerous occasions. The employer's president/owner warned him on a number of these occasions that he was expected to call the employer. After the employee was absent without notifying the employer on October 13, 2004, he was discharged later that same week.

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 before the commission is whether the employee's discharge was for misconduct.

The employer contended that the employee's discharge was for misconduct connected with his employment. This contention cannot be sustained. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading

case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

An important component of misconduct is a realization that a worker's behavior is contrary to the employer's standards of conduct. In Ness v. Deli-More, UI Dec. Hearing No. 02403062GB (LIRC April 10, 2003), the commission explained its consistent requirement that in other than in the most egregious cases, 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 also, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 7820774EX (LIRC May 29, 1979).

In this case, the employee was absent on numerous occasions without notice to the employer and always received the same verbal warning that he was expected to call. He was never specifically put on notice that his continued absenteeism without notice actually jeopardized the employment. Thus, under these circumstances, while the commission does not condone the employee's absenteeism without notice, it finds that his actions did not constitute misconduct.

The commission therefore finds that the employee was discharged in week 42 of 2004, and the discharge was 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 42 of 2004, if otherwise qualified.

Dated and mailed May 24, 2005
willije . urr : 150 : 1 MC 605.05  MC 665.04  MC 688.1  MC 699.05

/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 because its reversal was not based upon a differing interpretation of credibility. In particular, given the frequent prior absenteeism without notice and the employer's failure to warn the employee that his job was in jeopardy, the commission came to a differing legal conclusion.

 

cc: Attorney George E. Chaparas


 

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