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

TRACY  T  McMORRIS, Employee

DELUXE MEDIA SERVICES LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600579RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decisions of the administrative law judge are affirmed. Accordingly, the employee is ineligible for benefits in week 50 of 2005. The employee is ineligible for benefits beginning in week 51 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,545 to the Unemployment Reserve Fund.

Dated and mailed April 21, 2006
mortr . usd : 115 : 1  MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The employee worked about 18 months as an inventory clerk for the employer.

She suspended her employment on December 5, 2005 (week 50). She was discharged on December 16, 2005 (week 51), due to her attendance record.

In her 18 months of employment, the employee was absent all or part of approximately 55 days. Even though she testified that she did not have a particular medical condition, she cited personal illness as the reason for most of these absences. Although possibly suspicious, it is not inherently incredible. Given the lack of evidence, for example, that she was observed performing some other activity on the days she called in sick or that she was required to provide medical documentation for these absences but failed to do so, the record supports a finding that the employee had a valid reason for those days of absence she attributed to personal illness.

However, what is problematical here is the employee's attendance record during her last month of employment.

Where, as here, an employee has a significant number of attendance failures for valid reasons, it is the employee's responsibility to minimize the number of attendance failures for invalid reasons. James v. CI Dell Plastics, Inc., UI Hearing No. 01607536MW (LIRC March 13, 2002).

The employee received a written attendance warning (exhibit #4) on October 15, 2005, that, consistent with the employer's attendance policy, stated that she would receive a termination warning upon incurring 1.5 more attendance points (total of 8), and would be terminated upon incurring 3.5 more attendance points (total of 10). The employee reached the 8.5 attendance points level on December 5, but did not receive a termination warning since she was not present at work on or after that date, and reached the 10.5 attendance points level on December 14.

The employee reported to the employer that she would be absent on December 5 because she did not have a babysitter that day; and would be absent on December 13 and 14, after the end of a 10-day medical leave, because her car had been "totaled" in an accident at least a week earlier and she did not have transportation to work. It should be noted, in regard to the absence of December 14, that the employer gave her an opportunity to maintain her employment by reporting for second shift that day, the employee stated that she would get a ride from one of her family members and reporting to work the second shift would be no problem, and then did not show up.

It was the employee's responsibility to arrange reliable child care, (1)   and reliable transportation. (2)  This is especially noteworthy in regard to her last two days of absence, i.e., even though she had been aware for at least a week that her car was inoperable due to her accident, she did not make transportation arrangements during this period of time to enable her to report to work on December 13, the date the employer had been advised she would return, or December 14, when the employee told the employer she would get a family member to drive her to work but never showed up.

Under these circumstances, the employee's attendance record showed an intentional and substantial disregard of the employer's interests, and constituted misconduct. The employee was aware that her attendance record had placed her job in jeopardy and yet made no effort to make arrangements to get to work on December 13 and 14.

The other issue relates to the employee's eligibility for benefits from December 5 through 12, when she was absent, as her physician has indicated in exhibit #5, due to injuries she received in a car accident. The employee must, having received benefits, have represented to the department that she was able and available for work during that period of time. However, in exhibit #5, her physician states that she was unable to work, and had been prescribed bed rest, from December 2 through 12. This would, as the administrative law judge concluded, render her ineligible for benefits during this period of time pursuant to Wis. Stat. 108.04(1)(b)1. (3)


cc: Deluxe Media Services (Pleasant Prairie, Wisconsin)



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Footnotes:

(1)( Back ) See, Peterson v. Wells Fargo Bank Wisconsin, UI Hearing No. 02610699MW (LIRC June 6, 2003); Smith v. Securitylink From Ameritech, Inc., UI Hearing No. 00604067MW (LIRC Jan. 29, 2001).

(2)( Back ) See, Canar v. Ashley Furniture Industries, Inc., UI Hearing No. 03000559LX (LIRC May 9, 2003); Rincon v. Bank One Wisconsin, UI Hearing No. 01607055MW (LIRC March 12, 2002).

(3)( Back ) (b) An employee is ineligible for benefits: 1. While the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee...because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer.

 


uploaded 2006/04/24