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


WENDY L STROUD, Employe

MJP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98400555AP


On February 10, 1998, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with her employment. The employe timely requested a hearing on the adverse determination, and hearing was held on March 19, 1998 in Appleton, Wisconsin before a Department of Workforce Development administrative law judge. On March 20, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately three months as a part-time cleaning person for the employer, a commercial cleaning concern. The employer discharged her on January 22, 1998 (week 4), following the employe's absence on January 17, 1998, with late notice thereof. There are mitigating circumstances for both of the attendance failures for which the employe was discharged, so the commission concludes that the failures do not constitute misconduct for unemployment insurance purposes and reverses the appeal tribunal decision.

The first attendance failure was on November 11, 1997. The employe anticipated on the 10th that she might be absent the next day because she might have to take her daughter to her (the daughter's) grandmother the next day. The employe asked a co- worker to tell the employer on the 11th, if the employe was not there, that the employe would be absent that day. The co-worker forgot to give this message to the employer. There is no question but that the better course would have been for the employe to have give the employer notice herself of her absence from work on that date. Nonetheless, the employe did attempt to give the employer notice of her intended absence.

The incident precipitating the discharge was the employe's absence on January 17, 1998. The employe was scheduled to begin work at 10:00 a.m. Before going to work she had to take her daughter to her daughter's father in Appleton. The employe's car broke down in Appleton, preventing the employe from returning in time to report to work at 10:00 a.m. The employe tried to telephone her mother shortly after her car broke down, but at that time was unable to reach her. The employe eventually contacted her mother around 11:30 a.m., at which time her mother gave her the employer's 800 number for the employe to use to contact the employer and report her absence. The employe then telephoned the employer and indicated she would be absent that day because her vehicle had broken down in Appleton. Following this absence, the employer discharged the employe on January 22, 1998 (week 4).

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. In a three-month period, two absences without notice to the employer could constitute misconduct for unemployment insurance purposes. In such a case, though, the employe generally will have made no effort whatsoever to contact the employer regarding the absences. Then, it is a simple matter to infer an intentional disregard by the employe of a generally accepted standard, that employes give notice of their absences. In the case now before the commission, though, this reasoning is inapplicable. While it is true that the employe did not give personal notice of her first absence, yet she did make arrangements for the employer to receive notice thereof. She thus can not be said to have intentionally failed to give notice of her absence. With regard to the second absence, it is not even the case that it was without notice. The employe did give notice of the absence, it just was late notice. Given these factors, the employe's attendance failures simply do not rise to the level of misconduct for unemployment insurance purposes. The commission therefore finds that, in week 4 of 1998, the employe was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified.

Dated and mailed: June 30, 1998
strouwe.urr : 105 : 8  MC 605.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge found that the employe's delay in contacting the employer regarding her last absence was sufficient to constitute misconduct for unemployment insurance purposes. The commission disagrees.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge and would affirm the appeal tribunal decision. This was a short term employe who was a no call no show on November 11, 1997. Even though she knew she was likely to be absent on November 11, she told a co-worker not the employer. The co-worker did not remember to tell the employer. The employer policy required the employe to directly contact the employer. On the last instance, the employe tried to call her mother long distance but did not try calling the employer because she did not have the 800 number. The employer needed to know if the employe was going to be absent because she worked as part of a cleaning crew. If they waited for her, that delayed the cleaning. For these reasons, I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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