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

DOSHEALL JOHNSON, Employee

HOLIDAY INN EXPRESS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06601389MW


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 for about seven months as a food service worker and cleaner for the employer, a hotel. Her last day of work was January 17, 2006 (week 3), when she was discharged.

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

On October 30, 2005, the employee received a written warning for unexcused absences. She was advised in this warning that her next absence would result in a suspension or termination of her employment. She had been absent without a valid reason on September 14 after she overslept as a result of staying out late the night before celebrating her birthday. She provided late notice to the employer that she would not be appearing for work as scheduled. She was also absent on October 6 and October 29 due to childcare issues involving her granddaughter. On January 13, 2006, the employee traveled to the Chicago area to see her mother who was in the hospital having knee surgery. While in the hospital the employee's mother suffered a mild heart attack. On January 14, 2006, the employee was absent from work without notifying the employer of this absence. She was again absent on January 15; and called the employer and left a message that she would not be reporting for work. She did not speak to her supervisor as required by the employer's policy. As a result of the entire above course of conduct, the employer discharged her on January 17, 2006 (week 3).

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 the Boynton Cab case, mere proof of absence, however frequent, does not create a presumption of misconduct connected with the employment. In determining whether an employee's absenteeism constitutes misconduct connected with the employment, the courts have held that an employee's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, No. 161-399 (Wis. Cir. Ct. Dane County, Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., No. 107-419 (Wis. Cir. Ct. Dane County Mar. 2, 1962.)

The commission finds that the employee's overall attendance record did not demonstrate willful disregard for the employer's interests. The employee's absences were not all for valid reasons, in particular, her absence on September 14. However, the majority were for valid reasons. The employee did not contact the employer two hours before her starting time on September 14, but did contact the employer when she woke up to report her absence. The employee should have made more of an effort to contact the employer on January 14. However, the employee was out of town dealing with the illness of her mother. The employee did in fact contact the employer from a payphone on January 15, which supports her testimony that she borrowed money in order to make the call. The employer did not have firsthand testimony to rebut the employee's claim that she sought to speak with a supervisor on January 15, but that the individual who answered the phone indicated he was busy and needed to get off the phone.

The commission therefore finds that in week 3 of 2006, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2006, if she is otherwise qualified.

Dated and mailed May 12, 2006
johnsdo . urr : 132 : 8 :  MC 605.05  MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee's testimony sketchy at times, although he credited her claim that the individual who answered the phone on January 14 was in a hurry. The ALJ did not impart any specific demeanor impressions of the witnesses that led to his decision. The commission credits the employee's explanation for her absences in January and her reasons for not providing notice as required by the employer's policy, particularly in light of her forthright testimony regarding her reason for being absent on September 14.



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