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

MYRTLE V DOUGAR, Employee

SECURITAS SECURITY SERVICES USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04611569MW


On December 18, 2004, the Department of Workforce Development issued an initial determination which held that the employee had been discharged but not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on February 28, 2005 in Milwaukee, Wisconsin before a department administrative law judge. On March 10, 2005, the administrative law judge issued an appeal tribunal decision amending and affirming the initial determination. The employer filed a timely petition for commission review of the adverse decision and, by August 5, 2005 order, the commission remanded the matter to the Department of Workforce Development for additional hearing. That hearing was held on December 20, 2005; the matter now is again before the commission and 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 employee worked for about 10 months as a security officer for the employer, an operator of a security contracting business. Her last day of work was November 5, 2004 (week 45).

The employee was next scheduled to work on November 7, 2004 (week 46). She failed to report for work or to contact the employer as required by its rules. On November 8, 2004, she was again absent without notice. On November 9, 2004, she telephoned the employer and stated that she would report for her second shift that day. She was reminded of the employer's policy that a three-day absence without notice may be considered a quit. She did not report to work or contact the employer. On November 11, 2004 (week 46), she employer mailed her a letter informing her that her employment was terminated pursuant to the employer's three-day rule. She had missed work because she had begun drinking alcohol and taking pain medication. After her daughter found her intoxicated, she was admitted as an in-patient at a local rehabilitation and detoxification facility on November 11, and remained in the facility until November 13, 2004 (week 46), when she was released and referred to out-patient treatment. On November 16, 2004 (week 47), she contacted the employer and then, at the request of the employer, submitted documentation relating to her treatment. She was not reinstated.

The first issue presented is whether the employee terminated the work with the employer.

Wisconsin Stat. § 108.04(7)(a) provides that a worker who terminates his or her employment will have benefits suspended until four weeks have elapsed following the end of the week of quitting and until wages of four times the applicable weekly benefit rate are earned in covered employment. The only exceptions are those stated in the law. A worker may quit by giving notice of quitting, or by word or manner of action which is inconsistent with a continuation of the employment relationship.

Where there is a known rule providing that an absence of three days without notice will be considered a quit, and where a claimant knowingly violates the rule and while understanding the consequences, a quit may be found. However, the employee did not report to work because she believed she was unable to work and unable to call until November 9. She was then in a treatment facility for three days. She responded for the request for documentation. She did not consciously act in a manner that was inconsistent with a continuation of the employment relationship. She became unemployed as a result of the employer's decision to apply the no-call provision of its rules. She thus was discharged effective November 11, 2004.

The second issue presented is whether the employee was discharged for misconduct connected with the work under Wis. Stat. § 108.04(5).

In Boynton Cab Co. v. Neubeck, 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."

An absence of three days without notice amounts to an unreasonable interference with an employer's interests. Absenteeism can have a significant impact upon production, service, and morale. The focus in such absenteeism cases is on the worker's intent. Universal Foundry Company v. ILHR Dept., 86 Wis. 2d 582, 237 N.W. 2d 324 (1979). A failure to provide notice, even where there may be valid reasons, may amount to misconduct.

So it is here. The employee's extended absence without notice was a substantial disregard of the employer's interests. The attendance failures also must be considered intentional on the employee's part. It is a general principle that one intends the ordinary and natural consequences of his or her acts or failures to act, and the employee offered no competent medical evidence negating the presumption that her absences without notice were intentional failures on her part. As such, the employee's failures are the substantial and intentional disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 46 of 2004, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid unemployment benefits in weeks 48 of 2004 through 13 of 2005 and 15 of 2005 through 20 of 2005, totaling $2,752.00, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 10822(8)(a), she 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 employee fault as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2004, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 16, 2006
dougamy . urr : 105 : 1  MC 626  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 before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission does not believe the employee established justification for the absences without notice that precipitated her discharge.

 

cc: Continental, Inc.


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