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

REGINALD D SHAW, Employee

MADISON NEWSPAPERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05004038MD


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 about five years as a distribution expediter for the employer, a newspaper. His last day of work was June 24, 2005. He went on an approved leave of absence on June 26, 2005; the leave expired on July 26, 2005 (week 31). When he failed to contact the employer or show up for work within three days of the end of his approved leave, he was separated from employment.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee could not pay several traffic tickets, so he had to serve time in jail to get rid of the tickets. He submitted a leave form (exhibit 1) to the employer on June 23, 2005, requesting leave from June 26, 2005 to July 26, 2005. At the time he submitted the leave request the employee was not certain how long he would have to remain in jail. The request for leave was granted. The form told the employee that if he did not return from his leave of absence at the expiration of his leave, unless an extension had been approved in advance, his employment would be terminated.

The employee learned upon entering jail that he would have to spend at least another five or six days in jail. His collect calls were not accepted by the employer. When the employee did not call or show up for work on July 26, 27, 28 or 31, 2005, the employer deemed him to have quit. The employer had a policy, of which the employee was aware, that three consecutive days of no calls/no shows will be considered job abandonment. The employer terminated the employee in week 32 of 2005 pursuant to that policy. When the employee was released from jail on or about August 2, 2005, upon contacting the employer he was informed that he no longer had a job.

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."

Under the legal standard set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), mere proof of absence, however frequent, does not create a presumption of misconduct. In determining whether an employee's absences constitute misconduct, the courts and the commission have held that misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, Case No. 161-399 (Dane Co. Cir. Ct., Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Case No. 107-419 (Dane Co. Cir. Ct., Mar. 2, 1962). Generally, the commission has held that incarceration is not a valid reason for absence from work. Joe D. Culp v. Consumers Steel and Supply Co. (Dane Co. Cir. Ct., Dec. 11, 1958); Schweikert v. Ganton Technologies, Inc., UI Hearing No. 91-606281 (LIRC March 24, 1992); Philon v. Guyers Builder Supply Inc.,UI Hearing No. 02603203MW (LIRC Feb. 11, 2003); and Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003). The employee set in motion the chain of events which resulted in his failure to report to work by incurring the tickets and thereafter failing to satisfy those tickets. The employee did not, therefore, have a valid reason for his absences.

The employee did not present firsthand evidence that the employer received notice that he would not be appearing for work after the end of his approved leave. The employee maintained that he asked his wife to contact the employer and that she did so. However, the employee did not present non-hearsay evidence to establish that such contact was made. The employee's daughter's testimony regarding what she heard the employee's wife say was hearsay. The employee had no personal knowledge that such notice was given. Further, the individual allegedly contacted was not in a supervisory position. Finally, even if notice had been given, the employee's four days of absence for an invalid reason would still result in a finding of misconduct.

The commission therefore finds that in week 32 of 2005 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,312.00 for weeks 34 through 49 of 2005, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2005, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,312.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on August 15, 2005, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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 December 9, 2005
shawreg . urr : 132 : 1 : MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's reversal is not based on credibility. The commission has reached a different legal conclusion when applying the law to the facts.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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