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


NATALIA C SMITH, Employe

KENRO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602968MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about six months as a general laborer for the employer, a plastics manufacturer. Her last day of work was December 23, 1997 (week 52), when she was discharged.

The issue is whether the employe's actions, which led to her discharge by the employer, amounted to misconduct connected with employment.

In her six months of employment, the employe had six occasions where she did not report to work nor did she inform the employer that she would be absent, although two of those did not count toward her discipline as she was still in a probationary period. The employe also left early once, because she was ill, had a transportation problem in that the bus that she took to catch the employer's shuttle was late, and twice her son was ill. The employe was employed by the employer for only six months, and she was absent more than ten times, and did not have a valid excuse for not calling in to inform the employer of this. The employe indicated that she failed to contact the employer because she did not have a telephone, however, the employe failed to demonstrate that she was unable to find any way to contact the employer, and did not establish that her absences were for valid reasons. While the employe's attendance did improve at the end of her employment, the commission determines, after considering the employe's entire attendance record, that the employe's attendance demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 52 of 1997 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 15 through 34 of 1998, amounting to a total of $2,280.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

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 employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 52 of 1997, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $2,280.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on April 8, 1998, is set aside. If benefits become payable based on work performed for other covered employers a new computation will be issued as to those benefit rights.

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 employe 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: September 11, 1998
smithna.urr : 145 : 6 MC 605.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who indicated that the employe was a credible witness, and that it was understandable that she would not be able to telephone the employer which was long distance, when she did not have a telephone. The ALJ further indicated that the employer kept the employe on even though she had two no call/no shows during her probationary period, and that after October, she called in when she was not going to be at work. The commission disagrees with the ALJ's conclusion that not having a telephone was a valid reason for failing to call in and report absences. In addition, the employer warned the employe about her attendance and the need to call in. In fact, two points rather than one were given when a worker failed to call in. In addition, the commission concludes, after considering the employe's entire attendance record, that the employe's poor attendance during her short term of employment with the employer amounted to misconduct connected with her work.


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