ROBERT C PHILOPULOUS, Employee

BEST BUY STORES LTD PTRSHP, Employer

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:

The employee worked approximately four and one-half months as a home theatre products specialist for the employer, a retail store. The employee's last day of work was January 7, 2006 (week 1) when the employer discharged him.

When the employee was hired he was given a handbook regarding rules governing absenteeism and tardiness. The handbook provided that workers were to contact a manager at least one hour prior to the start of their shift, for each day they expected to be absent. Additionally, team meetings were considered part of their job assignments.

After working his shift on November 4, 2005, the employee visited a medical walk-in clinic because he was not feeling well. The employee was diagnosed with strep throat and given an antibiotic. The employee contacted the employer on November 5 indicating he was unable to work the next two days. The employee was unable to reach a manager, so he left a message with a customer service representative. This person failed to relay the message to the employee's supervisor or manager. When the employee returned to work, he was issued a written warning because he had missed a mandatory team meeting on November 5, and his regular scheduled work shift on November 6.

The employee also missed his scheduled work shift on December 4, 2005, because he wrote down his work schedule incorrectly on a piece of paper. The employer considered him a no call no show (NCNS) and issued him a final warning because of the incident.

In the last week of December 2005, the employee reviewed his work schedule and made a mental note that he was off work at least Sunday and Monday of the following week. After his last day of work in December 2005, he went to pick up a printed schedule but none were left. The employee did not ask a manager to print another schedule for him. On Monday, January 2, 2006, the employee called to see when he was next scheduled to work. He attempted to speak with a manager but no manger was available. The employee then asked the co-worker who answered the phone to check the work schedule for him. This co-worker informed the employee that he was next scheduled to work on Wednesday, January 4, when in fact the employee was actually scheduled to work on Tuesday, January 3, 2006. When the employee failed to report for his shift on January 3, the employer called him asking him where he was. The employee explained his understanding of the schedule and reported to work an hour and six minutes late. After this attendance violation, the employer discharged the employee on January 7, 2006, for excessive attendance and tardy violations.

The issue is whether the employee's discharge is for misconduct within the meaning of the law. 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 is satisfied that the employee provided sufficient notice in November. Moreover, the employer did not discredit the validity of the employee's medical reason. In January the employee did attempt to verify his work schedule only to be told incorrect information. Although the employer contends that the employee had four attendance violations in a two-month period, the commission holds that the November absences were with sufficient notice and for a valid reason. The employee was at fault for his December absence and took only partial precaution to avoid the absence in January. Notwithstanding these findings, without more, the commission is satisfied the employee's actions do not support a conclusion that he engaged in misconduct to a substantial and intentional disregard of the employer's interests.

The commission therefore finds that the employee was discharged in week one of 2006, and that the discharge was not for misconduct connected with the employment within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2006, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 15, 2006
philoro . urr : 135 : 8   MC 605.01  MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated he found the employee credible when he testified that he was sick in November and that he made the telephone calls to the employer as he testified. The commission however reaches a different legal conclusion when applying the law to the facts found.

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uploaded 2006/06/20