DANIEL M GRAY, Employee

COPPERLEAF HOTEL, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Insert the following after the first paragraph under the FINDINGS OF FACT AND CONCLUSIONS OF LAW:

While Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment, the subsection's language, "unless sub. (5g) applies" requires a determination whether Wis. Stat. § 108.04(5g) applies. See Dykstra v. Sulzer Machine & Mfg. Inc., UI Dec. Hearing No. 06201124RH (LIRC, October 6, 2006).

Wis. Stat. § 108.04(5g) provides as follows:

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. In particular, the employee was not discharged for a lack of notice within the meaning of the above; instead, he was discharged based upon his tardiness.

Insert the following after the fifth paragraph under the FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The commission therefore finds that in week 23 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 decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 23 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed October 27, 2006
graydan . umd : 150 : 1  MC 605.01  MC 606

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Although the petitioner contended that he was not prepared for the hearing, he failed to cite to any material evidence that was omitted. More importantly, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence and the commission exercises its discretion to order the taking of additional evidence in matters before it, in only a few exceptional circumstances. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing which they could not have known of before the hearing. Finally, the petitioner has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted.

The record reflects that the employee continued to be tardy to work after receiving warnings and without valid reason. The employer was attempting to work with the employee to improve his attendance but the employee's continual tardiness after warning evinced a wilful and intentional disregard of the employer's interests and of the standards of conduct the employer had a right to expect. Therefore, the commission affirms the decision with modification only to address the new statutory provision found at Wis. Stat. § 108.04(5g).

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