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

JASON P HANSEN, Employee

US CELLULAR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05606769MW


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 two years, most recently as a customer service associate for the employer, a cellular telephone company. His last day of work was April 22, 2005 (week 17), when he was discharged. The employee was discharged for his attendance history.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his employment.

The employer's attendance guidelines state that an unexcused absence is an absence where the employee has no sick time available. If there is no sick time available the absence will be considered unexcused and appropriate disciplinary action will be taken. That policy also states that an associate who fails to call in cannot use any benefit time, including sick, vacation or personal to pay for the absence.

In July of 2004 the employee received a written warning for absence on May 5, 2004, without notice to the employer. The warning noted that "an associate who fails to call in to report their absence may use their paid sick/emergency time to cover the absence but the absence will still be considered unexcused and appropriate disciplinary action will be taken. If an associate has three or more no-call/no-show incidents in a 12-month period, the associate will be terminated."
The employee blamed his no-call/no-show in July of 2004 on the fact that he had transferred from sales to customer service and when in sales he did not have to report for work on Mondays.

On December 18, 2004, the employee received a second written warning for calling in sick on December 14, 2004, for a scheduled overtime shift. The warning noted that the employee had no sick time available so the absence was unexcused and unpaid. The warning noted that other attendance infractions would lead to further discipline up to and including discharge. The employee testified that he was absent on December 14, 2005, because he had a cold or the flu.

The employee called in sick on March 3 and March 5 but had no sick time remaining. The employee was allowed to use unapproved vacation time. On March 7, 2005, the employee was a no-call/no-show. The employee maintained that he was told that he could not use vacation time for the March 7 absence because he did not have any left. He had used vacation for March 3 and March 4. The employee was absent because he was starting to feel more ill and depressed.

On March 9 the employee received a final written warning, which he signed, for his March 3 and 5 absences and the March 7 no-call/no-show. The corrective action stated, under no-call/no-shows, "each incident of no-cal(sic)/no-show will be handled using a progressive discipline system. Additionally, associates who fail to call in cannot use any benefit time, including sick, vacation or personal to pay for the absence." The written warning stated that additional absences would lead to further discipline up to and including discharge.

The employee did not appear for work on April 21, 2005, and did not report his absence to the employer. The employee indicated that he had slept through the day. He had been scheduled to work at 9:00 a.m. to 6:00 p.m. According to the employee, he fell asleep about 2:00 a.m. and did not wake up until 6:00 p.m. The employee was on antidepressants and took Tylenol. However, the employee's doctor did not excuse the employee from work on April 21

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."

The commission finds the employee's absences without notice to the employer demonstrated an intentional and substantial disregard for the standards of behavior the employer had a right to expect of the employee. The employee failed to provide the employer with notice of absence on three occasions. The employee did not establish that his condition was such that he was unable to provide notice on the final occasion. The employee's doctor did not indicate that the employee was unable to work. The commission cannot conclude that the employee was unable to provide the employer with notice of his absence on April 21.

The commission therefore finds that in week 17 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 $1,792.00 for weeks 18 through 24 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 17 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 $1,792.00 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 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 February 21, 2006
hanseja . urr : 132 : 1 : MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that the employee was a nervous individual. The ALJ indicated that she credited the employee's explanation for his final no-call/no-show. In her decision the ALJ indicated that the employer failed to follow its policy and allow the employee to use vacation time for the April 21 absence. However, whether the employee could use vacation time to cover his absence, and thereby get paid for that absence, was a separate issue from whether the employee's absence was excused. Although the employee used vacation time for his March 3 and 4 absences, he nonetheless received disciplinary action for those absences.

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.

cc: Sandy Smith


Appealed to Circuit Court.  Affirmed March 27, 2007.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/02/27