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

WENDY D NEUOK, Employee

AURORA HEALTH CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600871MW


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 four years as a collector for the employer, a healthcare facility. Her last day of work and discharge was January 5, 2005 (week 2).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

On January 5, 2005 (week 2), the employee arrived late to work by six minutes. Since it was the seventeenth tardiness in 12 months and since the employee was on final warning status due to her attendance, she was discharged that same day.

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."

In his case, the employee was late on her last day of work because her husband did not return home from his job in time for her to leave for work. The employee had young children that she could not leave home alone.

On December 15, the employee was 20 minutes late because she forgot one of her children's belongings and had to go home and return to the daycare with the item. The employee was pregnant and had difficulty with mobility. She was a few minutes late on one occasion because it snowed heavily and could not park in the parking lot. She had to park several blocks away and it took her some time to walk though the snow to get to work. The employee was tardy a considerable number of times in her last year of employment. However, the commission notes that she was often late only one to four minutes. On one occasion she was late 15 minutes and another 20 minutes. While this may have been a rule violation, the duration was so short as to not cause undue disruption to the employer's business. The employee's job was as a collector, and while the employer had the right to expect her to report to work in a timely manner, her tardiness did not cause the problems that might have resulted if she had a position that depended upon punctuality, for example, if the employer was a restaurant and she was required to open the employer's store. The employer did not assert that her tardiness caused any specific harm to the employer's operation.

While the employee should have called the employer on the two occasions that she was more than ten minutes late, the employer's policy provides that workers should call in if they were going to be "unduly delayed" in arriving at work. It is not clear that 15 or 20 minutes constituted an undue delay under the policy. While the employer may have made a valid business decision when it discharged the employee, the commission cannot conclude that the employee's attendance record evinced such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 2 of 2005, the employee was discharged, but that her discharge was not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 2 of 2005, if otherwise qualified.

Dated and mailed June 22, 2005
neuokwe . urr : 145 : 1    MC 688

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on any differing assessment of witness credibility or demeanor. Rather, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2005/07/06