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


J R KAMKE, Employe

QTI OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600408MW


On January 3, 1998, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe timely requested a hearing on the adverse determination, and hearing was held on February 6, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On February 23, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer timely filed a petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about a month for the employer, a temporary employment agency. The employer discharged him on November 24, 1997, for three absences allegedly without notice to the employer, and two instances of leaving work early. The commission concludes that the employe's attendance failures are misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

In his month of employment, the employe missed work on three occasions, once due to illness, once due to his taking a welding test in order to gain permanent employment, and once due to automobile breakdown. In addition, the employe left work early on two occasions, once due to illness and once for reasons unknown. The attendance failures due to illness of course may not be held against the employe. The absence to take the welding test is problematic, however; the evidence does not suggest that the employe had to miss work in order to take the welding test. The employe's absence due to car breakdown also is problematic, because the employe conceded that he could have gone to work via public transportation.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employer's work rules include a requirement that employes personally give the employer notice of absences and instances of tardiness. The employe did not give the employer notice of his absences or the two instances he left work early. Given these failures, and the relatively high number of attendance failures by the employe in only a month of employment with the employer, the commission concludes that the employe's attendance record meets the above- stated definition of misconduct.

The commission therefore finds that, in week 48 of 1997, the employe was discharged for misconduct connected with his employment. The commission also finds that the employe was paid benefits of $240.00 per week for each of weeks 50 and 52 of 1997, totaling $480.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault, yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 48 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He must repay $480.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: July 9, 1998
kamkejr.urr : 105 : 1 MC 605.05 PC 714.02  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge found that the employe had given notice to the employer of his absences. In so finding, the administrative law judge rejected the employer's computer records indicating that the employe in fact had not given the employer notice of his absences. The commission believes the computer records are sufficiently reliable to establish that, in fact, the employe did not give the employer the notice of his absences he was required to give. It is true that, for a variety of reasons, the employer would not know immediately that the employe had missed work at the client to which he was assigned. Specifically, the employer would discover the absences whenever the client would mention them, which would be a week after the fact, or when the employer reviewed the employe's timecards at the end of a pay period. The employe conceded he had been absent, however, and the employer's computer records do not show that he telephoned the employer to give it notice of those absences. Regardless of when the employer would have found out from other sources about the employe's absences, the absence of any record that the employe telephoned in his absence is competent evidence that the employe did not give the notice, at least where the employe concedes the absences. For these reasons, the commission believes the employer's computer records are sufficient to establish the employe's failure to give the employer notice of his absences.


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