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

JEREMIAH J FISCHER, Employee

R & S MOTOR SPORTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401433AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The fifth paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

The employer contended that the employee engaged in misconduct when, during 2003, he was tardy 35 times and absent without notice or without valid reason several time. However, the employer failed to offer competent evidence as to these attendance deficiencies. The employee admitted in his hearing testimony, however, to two tardies for invalid reasons (errands, oversleeping) during the relevant time period, to two absences without valid reason (March 7 and 8), and to two no call/no show absences (March 15 and 17). The employer did not show, however, that the employee had reason to be aware that his job would be in jeopardy for these attendance deficiencies, and failed, as a result, to sustain its burden to prove misconduct.

2. Paragraphs 6, 7, and 8, of the Findings of Fact and Conclusions of Law section are deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2003, if otherwise qualified.

Dated and mailed December 4, 2003
fischeje . umd : 115 : 1   MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee worked one year as a service technician for the employer, a retail sales and service outlet for motor sports products.

The employer offered only unsubstantiated hearsay evidence in its attempt to show that the employee was tardy 35 times between January 1 and March 14, 2003; absent without valid reason on March 7 and 8; and absent without notice on March 15 and 17.

The employee admitted in his hearing testimony, however, that he may have been tardy once or twice because he had been running errands or because he had overslept; that he didn't recall the reason for his absences on March 7 and 8; that he did not report to work on March 15 because he had been jailed the night before and was tired; that he was arrested on Friday, March 14, on a bench warrant because he had failed to note the date on correspondence he had received from the court in Marathon County and had failed as a result to appear for a court date; that he didn't report to work on March 17 because he had two court appearances that day; and that he never provided notice to the employer of the morning court appearance but called Bob, one of the supervisors, after this morning appearance, to advise that he also had an afternoon court appearance and would not be in to work at all that day as a result. The commission concludes on this basis that the employee failed to offer valid reasons for the two tardies to which he admits; for his absences on March 7, 8, and 15; and for his failure to provide advance notice of his absence on March 17.

The employer testified that the employee had received no prior written attendance warnings; that the employee had been told that his tardiness and no call/no show absences were unacceptable; and that the employee had been told to improve his attendance because the employer wanted to keep him around. The employer's attendance policy states that tardiness will not be tolerated.

The employer failed to prove misconduct here because it failed to show that the employee had reason to be aware that his job would be in jeopardy for being absent without notice or valid reason on March 15 and 17. The employer contends that the employee was a no call/no show on March 1 and 2 and March 7 and 8. However, the record does not show that, as a result of these earlier no call/no show absences, the employer issued a written warning, disciplined the employee, or in any other way indicated that further no call/no show absences would result in the employee's discharge. See, White v. Riverside Coal, Inc., UI Hearing No. 02008327MD (LIRC July 31, 2003)(employee did not have reason to be aware that job in jeopardy where employer failed to take action despite employee's continuing pattern of tardiness and no call/no show absences); Ness v. Deli-More, UI Hearing No. 02403062GB (LIRC April 10, 2003).


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/06/20