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

SONJII R TOLLIVER, Employee

WENDY'S OLD FASHIONED HAMBURGERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602052RC


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 one and one-half years for the employer, a fast food restaurant, the last five months as an assistant manager. The employee was discharged on February 5, 2005 (week 6).

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

The employee was absent on January 14, 2005, and did not provide notice to the employer of her absence. Although the employee explains that she was absent because she was physically assaulted by her partner, and did not contact the employer until the following day because her home phone was inoperable, the administrative law judge did not credit these explanations, and there is no persuasive reason in the record to overturn this credibility determination.

The disciplinary report (exhibit #1) prepared as a result of the employee's January 14 no call/no show absence indicates that the employee was told that another no call/no show absence would result in her termination, and that the employee had stated it would not happen again. The employee did not receive this report. The employee was told by the employer that such an absence could not occur again.

The employee provided late notice of her absence on January 28, 2005. The disciplinary report (exhibit #2) prepared in regard to this absence is denominated a final written warning. The employee did not receive this report.

The employee called in after the start of her shift on February 2, 2005, to provide notice that she would be late. However, she never reported to work that day. The employee admits that her late notice/absence was due to cocaine abuse.

The employee did not have valid reasons for her attendance deficiencies on January 14, January 28, or February 2, 2005.

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 her job is in jeopardy or will be if she 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 handbook (exhibit #3) states that, "absenteeism which is deemed excessive by Wendy's...will result in discipline up to and including termination," but does not define what is intended by the term "excessive." In addition, as discussed above, the only warning which the employer provided the employee was to the effect that another no call/no show absence could not occur again. These actions by the employer were insufficient to place the employee on notice that her job was or would be in jeopardy.

The remaining question, then, is whether the employee's attendance record was sufficiently egregious to relieve the employer of its responsibility to provide notice to the employee that her job was in jeopardy.

Under the situation present here, two no call/no show absences, even without mitigating circumstances, in addition to an absence with late notice but for a valid reason, within a three-week time period, does not support a conclusion of misconduct in the absence of notice to the employee that her job was in jeopardy. See, e.g., Smith v. New Grancare, Inc., UI Hearing No. 00001422MD (LIRC July 13, 2000)(misconduct where two no call/no show absences without valid reason and employer policy provided notice to employee that termination would result); Fischer v. R&S Motor Sports, Inc., UI Hearing No. 03401433AP (LIRC Dec. 4, 2003)(two no call/no show absences, even with prior attendance deficiencies, not misconduct where employer failed to provide notice to employee that job in jeopardy).

The commission concludes that, in week 6 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 6 of 2005, if otherwise qualified.

Dated and mailed June 15, 2005
tollivs . urr : 115 : 1   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.

 

cc: Santo A. Galati


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uploaded 2005/06/20