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

ELIZABETH J KOTLARZ, Employee

CENTRAL PARKING SYSTEM OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04610943MW


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 approximately 10 months for the employer, a provider of parking services. She most recently worked as an administrative assistant. Her last day of work was February 28, 2004 (week 9).

On four occasions between August of 2003 and early February of 2004, the employee called in sick to work. On another occasion, she went home ill. After her fourth absence on February 3, 2004, the employer gave her a verbal warning about attendance.

On March 2, 2004 (week 10), the employee was scheduled to work at 10 p.m. She failed to show for work or report her absence to her employer because she had a migraine headache. The following morning, the assistant manager called her and left a message to return the call. The employee did not immediately receive the message because she had turned her phone off.

On March 3, 2004 (week 10), the employee was scheduled to start work at 11:55 p.m. She failed to show for work or report her absence to the employer because she remained ill with her migraine headache. The following morning, the assistant manager called her and left a message to return the call. When the employee turned her phone back on and heard the messages, she called the assistant manager, who stated that the employee no longer had a job.

The initial issue to be decided is whether the employee quit or was discharged.

The employee contended that she felt better and likely would have returned to work the evening of March 4, 2004 (week 10), if allowed. It was the employer that decided to end the employment relationship because of her two absences without notice. The employer failed to establish that it had any policy which would have put the employee on notice that two absences without notice severed the employment relationship. Under these circumstances, the employee's actions were not so inconsistent with the employment relationship as to evince an intent to sever it. Instead, the employer discharged the employee.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the next issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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 insurance 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 Fischer v. R&S Motor Sports, UI Dec. Hearing No. 03401433AP (LIRC December 4, 2003) the Commission held that two no call/no show absences, even with prior attendance deficiencies, was not misconduct where employer failed to provide notice to employee that the employee's job was in jeopardy. Also, in Tolliver v. Wendy's Old Fashioned Hamburgers, UI Dec. Hearing No. 05602052RC (LIRC June 15, 2005), the Commission held that 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, did not support a conclusion of misconduct in the absence of notice to the employee that her job was in jeopardy.

In this case, the employee's last two absences were for valid reasons. The employer did not have a separate no call/no show policy and, while it may have been poor judgment of the employee not to notify the employer of her absences and to turn off her phone while she was ill, she had never been absent without notice the past. Her only other discipline was a verbal warning. There is no evidence that she had been warned that her job was in jeopardy under such circumstances. For these reasons, the commission finds that the employee's two no call/no show absences did not constitute misconduct connected with the employment.

The commission therefore finds that in week 10 of 2004, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a) but was discharged by the employing unit and her discharge was not for misconduct connected with the employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2004, if otherwise qualified.(1)

Dated and mailed December 9, 2005
kotlael . urr : 150 : 4   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 prior to reversing his decision. As the reversal was not based on any differing credibility findings, but is based upon a differing legal conclusion on the facts as found by the administrative law judge.


cc: Central Parking System of Wisconsin Inc.


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Footnotes:

(1)( Back ) A companion commission decision for hearing no. 05600321MW affirms the denial of benefits to the claimant as of week 52 of 2004 until she is able to work and available for work.

 


uploaded 2005/12/12