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

JAMES W MERKEL, Employee

LANG FURNITURE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001929MD


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 decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 27, 2006  [Note]
merkeja2 . upr : 164 : 4   MC 605  MC 606

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

In the petition for commission review, the employer attempts to supplement the record with factual assertions that were not made at the hearing. For example, the employer argues that the employee told it the reason he missed the January 3, 2005 meeting was not because of illness, but because he forgot and that, at the March 16 meeting, it pleaded with everyone to be certain they showed up for work during the employer's busy season. However, by law the commission is required to base its review solely upon the evidence that was presented at the hearing before the appeal tribunal. The commission therefore will neither consider nor address those factual assertions which the employer could have made at the hearing but has presented for the first time with its petition for review. Instead, the commission will limit its review to that evidence that is already in the record.

The evidence adduced at the hearing established that, shortly after receiving the employer's attendance policy, the employee was absent on three consecutive days without notice to the employer in order to perform construction work on his duplex. The employee was then two and a half hours late for work without notice on one occasion in the subsequent week. While the commission might previously have been inclined to find misconduct under these circumstances, a recent amendment to the unemployment insurance statute appears to call for a different result. Effective for separations occurring on or after April 2, 2006, the legislature has determined that individuals who are absent on five or more scheduled workdays without adequate notice to the employer, and who satisfy certain statutory requirements, will be ineligible to receive benefits until six weeks have elapsed since the discharge and the employee earns wages equal to at least six times his weekly benefit rate. See Wis. Stat. § 108.04(5g). By contrast, the misconduct disqualification renders the employee ineligible for benefits for seven weeks after the discharge and until the employee has earned wages equal to at least fourteen times his weekly benefit rate. See Wis. Stat. § 108.04(5). The employee in this case did not have a sufficient number of absences without adequate notice subsequent to the issuance of the employer's policy to fall within the purview of Wis. Stat. § 108.04(5g). The commission believes that, in a case like this, where the only evidence adduced is the employee's absence without proper notice, to impose the greater misconduct disqualification on an individual who has too few absences to be subject to the lesser disqualification of the newly-enacted attendance provision would be an anomalous result which the legislature did not contemplate.

IIn its request for reconsideration, the department argues that Wis. Stat. § 108.04(5g) is a stand-alone provision, which should have no effect on the analysis under Wis. Stat. § 108.04(5). The commission disagrees. The unemployment insurance statute is a remedial statute which warrants liberal construction. See Butzlaff v. Wisconsin Personnel Commission, 166 Wis. 2d 1028, 1033, 480 N.W.2d 559 (Wis. Ct. App. 1992). Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. State ex rel. Kalal v. Circuit Court, 271 Wis. 2d 633, 663, 681 N.W.2d 110 (2004). The misconduct statute and sub. (5g) are part of the same statutory scheme and must therefore be read in harmony with one another. The numerical standards in sub. (5g) inform the commission's analysis regarding the applicability of the general misconduct statute, and the fact that an individual has too few attendance violations to trigger the lesser sub. (5g) disqualification will be a factor weighing against imposing the more severe disqualification associated with a finding of misconduct. However, the commission recognizes that there may be instances in which an individual's conduct is so egregious as to evince misconduct even where there are fewer than five absences or six tardies without adequate notice. Therefore, as the commission noted in Frechette v. Menominee Indian Tribe (LIRC, Nov. 10, 2006), it does not consider the numerical standards set forth in sub. (5g) to constitute an absolute floor under which misconduct will never be found, but regards them merely as one factor to be considered.

In this specific case, the employee had three no-call-no-shows and then was tardy on one occasion without notice to the employer.b>(1) The employer's policy provides that an employee's first three absences and five tardies will be excused, and the employee could have reasonably concluded that he was entitled to those absences. While the employee showed poor judgment in failing to provide the employer with notice of his absences, and in failing to notify the employer that he would be late on his last day of work, the commission does not consider his actions sufficiently serious to warrant a finding of misconduct, particularly where the employee had too few attendance violations without adequate notice to warrant the lesser penalty under sub. (5g).

The commission therefore concludes that, while the employee's attendance record was objectionable and his commitment to the job questionable, his actions did not constitute misconduct, within the meaning of the law. Accordingly, the appeal tribunal decision is affirmed.p>  


 NOTE: The commission originally issued its decision in this matter on October 19, 2006.   On November 19, 2006,  the commission set aside that decision pending reconsideration.  On December 27, 2006, the commission issued a decision reinstating its original decision with modifications.   The decision is shown here as affected by the modifications made by the commission on December 27, 2006, which added what are now the third and fourth paragraphs of the memorandum opinion.

Appealed to Circuit Court.  Set aside and remanded, September 4, 2007. [LIRC Decision on Remand]

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Footnotes:/i>

(1)( Back ) Although in its request for reconsideration the department argues that the commission erred in failing to specifically address other attendance violations preceding those referenced in its memorandum opinion, the commission adopted the appeal tribunal's findings of fact with respect to those absences. The appeal tribunal concluded that the employee's absences in 2005, prior to the employer's adoption of an attendance policy and for which he was not disciplined were not relevant, and that the employee's absence on January 3, 2006, the day on which the policy was disseminated, did not count against him, since he was unaware of the policy on that date and did not know it applied retroactively, and because he was absent for valid personal reasons. Having adopted the appeal tribunal's findings, the commission was not required to engage in any further discussion of those facts which it found not relevant and believed did not support a finding of misconduct.

 


cc: Attorney Daniel J. LaRocque

uploaded 2007/01/02