GREGORY W DYKSTRA, Employee
SULZER MACHINE & MFG INC, Employer
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:
The employee worked for the employer, a machine shop, for just under a year as a machinist. His last day of work was April 5, 2006. He was discharged April 11, 2006 (week 15).
The employer has an attendance policy which provides, in relevant part, as follows:
Absence is the failure to report for work and to remain at work as scheduled. It includes late arrivals and early departures as well as absence for an entire day. . . . If an employee knows in advance that he is going to be absent or unavoidably late, management should be called as soon as possible. Failure to request advance approval or to report an absence as described above will result in the absence being recorded as unexcused. . . .
Employees with above-average absenteeism may be required to document the reasons, including providing a doctor's certificate. Upon returning to work from an unexcused absence, the employee must report to management and disclose the reasons for the absence. If management accepts the reason as valid, no discipline will be imposed. If the reason is not acceptable, the employee may be disciplined in accordance with the following schedule:
First unexcused absence - oral warning.
Second unexcused absence - written warning.
Third unexcused absence - 3-day suspension.
Fourth unexcused absence - 10-day suspension.
Fifth unexcused absence - discharge.
Exceptions to this schedule, depending upon the circumstances of the case, may be made by management.
Ex. 1, p. 3.
During the course of his employment, the employee missed work without notice on over thirty occasions. The employee contended that most of his absences were due to health problems, such as migraine headaches. He further explained that he did not provide notice of his absences because of issues involving lack of cell phone reception and insufficient minutes on his prepaid cell phone. On several occasions the employer asked the employee to bring in medical information justifying his need to miss so much work. However, while the employee did bring in a few doctor's excuses, he did not do so on a regular basis and never provided the kind of detailed information the employer requested. Although the employer did tell the employee that he needed to improve his attendance, the employee was not subjected to any formal discipline under the employer's policy.
The employee was most recently absent without notice on April 6, April 7, and April 10, 2006. On April 11, 2006, the employer notified the employee he was discharged because of his attendance.
A recently-enacted statutory provision designed to address situations in which an employee is discharged because of absence or tardiness without adequate notice, provides, as follows:
108.04(5g) DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.
(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.
(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.
(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.
3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1 within the 12 month period preceding the date of the discharge.
4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.
The above-cited absenteeism provision does not apply in this case. Although the employer has a written attendance policy, a copy of which was provided to the employee, the policy does not define what constitutes a single occurrence of tardiness or absenteeism. Further, while the absenteeism provision requires that the employer apply its policy uniformly to all employees, the employer's policy expressly states that, depending upon the circumstances, exceptions may be made.
Having concluded that Wis. Stat. § 108.04(5g) does not apply, the next question to decide is whether the employee was discharged due to misconduct.
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 employee's attendance record was poor, and his excuses for not reporting his absences are unconvincing. However, the employer condoned the employee's conduct by allowing him to miss numerous days without notice and without providing doctor's excuses. (1) Although the employer's policy contemplates progressive discipline for attendance violations, the employer did not follow the disciplinary steps contained in its policy with regard to the employee. The employee was generally informed that improvement was expected, but was not put on clear notice as to how many absences would be tolerated, and under what circumstances, prior to discharge. Given these circumstances, the commission is unable to conclude that the employee's attendance, poor as it was, constituted a deliberate disregard for the employer's interests.
The commission therefore finds that in week 15 of 2006, the employee was discharged, but not for failure to notify the employer of absenteeism or tardiness, within the meaning of Wis. Stat. § 108.04(5g).
The commission further finds that the employee's discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2006, provided he is otherwise qualified. The employee is not required to repay the sum of $4,155 to the Unemployment Reserve Fund.
Dated and mailed October 6, 2006
dykstgr . urr : 164 : 8 MC 606 MC 605 MC 665.04
/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 about witness credibility and demeanor. The commission's reversal does not depend upon a differing assessment of witness credibility, but is as a matter of law.
cc: Attorney Patrick H. Finlan
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