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

JOY A DEAL, Employee

OASIS OUTSOURCING III INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000485BO


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 approximately seven months as a housekeeping supervisor for the employer, a resort. Her last day of work was December 21, 2004 (week 52). She initiated a claim for benefits on January 7, 2005.

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee lived twenty miles from work. She drove her car to work on December 21, and drove her car to the work site to collect her paycheck on December 22, but was not scheduled to work that day. The employee was not scheduled to work on December 23, and could not get her car started that day.

The employee was expected to use her personal vehicle to travel between work units as a part of her assigned duties for the employer.

The employee did not report to work her scheduled shifts on December 24, 25, and 26, because her car would not start, but provided proper notice to the employer that she would be absent those three days.

The employee was next scheduled to work on December 28, and phoned her supervisor on December 27 to report that her car was still not starting. She was informed by her supervisor during their conversation on December 27 that, if she did not report to work her scheduled shift on December 28, she would be terminated. The employee did not report to work on December 28 because her car would not start.

Some time between December 28 and December 30, one of her friends hauled the employee's car to a service garage, and it was repaired by December 30.

The employer owned a vehicle which it used on occasion to transport employees residing in remote locations to and from the work site. The employer did not offer to perform this service for the employee.

The employee did not report to work after December 21, 2004. The employee attempted to discuss the matter with her supervisor on December 28 and December 31, and, although the supervisor told the employee she would call her back, she did not do so. The employee later learned that the employer had discharged her for missing four days of work.

In view of the employee's efforts to stay in touch with the employer, both before and after December 28, the separation at issue here was a discharge. See, Thaler v. Kettle Moraine Exteriors, Inc., UI Hearing No. 03605761WB (LIRC Feb. 11, 2004).  See, also, Guess v. Village of Miscoda-Grant County, UI Hearing No. 90-003206DV (LIRC Oct. 9, 1990) (although distinction between quit and discharge not always clear, separation for pattern of unexcused absences a discharge, but for failing without notice to report for work a quit-providing notice of subject absence shows employee did not intend to quit). Although it is arguable that the employee's failure to report to work after her supervisor's December 27 ultimatum could be analyzed as a quit, (1)  i.e., the employee had an opportunity to maintain the employment relationship by reporting to work on December 28 but failed to do so, this same analysis could be applied to every attendance case where an employee fails to report to work after receiving notice that her continued absence places her job in jeopardy.

The next question then is whether this discharge was for misconduct.

The employer did not appear at the hearing. Although employers have the burden of proof in misconduct cases (Consolidated Const. Co., Inc. v. Casey, 71 Wis.2d 811 (1976)), this burden may be satisfied through evidence offered by the employee/appellant. See, Lambert v. Bridgestone/Firestone, Inc., UI Hearing No. 91608993MW (LIRC May 20, 1992). Here, the employee testified that she learned that she was discharged by the employer for failing to report to work her scheduled shifts on December 24, 25, 26, and 28, 2004. The employee further established that this failure was due to lack of transportation.

Generally, it is an employee's responsibility to arrange for reliable transportation to work, although only a pattern of failing to fulfill this responsibility satisfies the misconduct standard. See, Rincon v. Bank One Wisconsin, UI Hearing No. 01607055MW (LIRC March 12, 2002); Thaler, supra. In this case, the employee was required to use her personal vehicle to perform her assigned work duties, so simply arranging to get a ride to and from work would not have sufficed. Under these circumstances, and given the reasonable diligence exercised by the employee in her attempt to get her car fixed and to locate a vehicle she could borrow for the duration of her work shifts, as well as the employer's failure to make the transportation service it offered other workers available to the employee, the commission concludes that the record does not support a conclusion of misconduct.

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.

DECISION

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 June 2, 2005
dealjoy . urr : 115 : 4   MC 626

/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 her 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.

cc: Oasis Outsourcing III Inc. (Wisconsin Dells, Wisconsin)



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Footnotes:

(1)( Back ) See, e.g., Fleming v. Cable Constructors, Inc., UI Hearing No. 01000966MD (LIRC May 9, 2001).

 


uploaded 2005/06/06