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

REGINALD B KELLUM, Employee

WISCONSIN PORCELAIN CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005484MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a manufacturer of ceramic abrasive tumbling media, for a year and three months as a kiln fireman. His last day of work was November 6, 2005, and he was discharged on November 7, 2005 (week 46).

The employer has a no-fault attendance system under which employees accrue half a point for reporting late or leaving early, and a full point for an absence. The policy provides for a warning at four points, suspension at six points, and discharge at eight points, based upon a rolling calendar year. The employer's policy describes limited circumstances under which absences or tardiness will be excused. However, employee illness is not included on this list, and the employer provides no sick days.

The employee received a warning on January 5, 2005, for having accrued four points under the employer's attendance policy. All of these points were due to tardiness. The employee was told that if he accumulated two more points by August 31, he would be subject to a three-day suspension.

On June 2, 2005, the employee was issued a three-day suspension for reaching six points. Again, the additional points were due to tardiness. The employee was advised that two more points before September 1 would result in discharge.

The employee was tardy twice prior to September 1, 2005, and accumulated another point. On September 5 he was absent due to illness. The employee was also tardy twice in the first two weeks of September. On September 13, at which time the employee had eight attendance points, he was given a "last chance" warning. The warning specified that another late or absence prior to January 1, 2006, would cost him his job.

The employee was absent on November 3, 2005, with notice to the employer, because he was sick with the flu. On November 7, he was discharged for violating the employer's attendance policy.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab 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 compensation 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 employe, 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 employe'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' within the meaning of the statute."

The employer discharged the employee for accruing the maximum number of points allowable under its no-fault attendance policy. However, the commission does not believe the employee's attendance violations amounted to misconduct. While the employee was late on numerous occasions for reasons which were not valid, after being given the "last chance" warning the employee went seven weeks without being tardy. The commission has held that such improvement is significant, and that recent good attendance can overcome an earlier, poor attendance record. See, Brown v. Banc One Services Corp. (LIRC, April 11, 2003).

Moreover, the final incident which culminated in the employee's discharge was not a tardy arrival at work, but an absence due to illness, a matter over which the employee had no control. The employee had no additional tardies prior to his discharge, and his actions in missing work for a valid reason and with notice to the employer did not evince misconduct.

The commission, therefore, finds that in week 46 of 2005, the employee was discharged and not for misconduct connected with his 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 46 of 2005, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed April 13, 2006
kellure . urr : 164 : 1   MC 688

/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 regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is because the commission reached a differing conclusion when applying the law to essentially the same set of facts as that found by the administrative law judge.


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