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

JACQUELINE A MUNRO, Employee

KND INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604490MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a crew member for the employer, a restaurant business, for over three years. Her last day of work was May 3, 2006. She was discharged on May 5, 2006 (week 18).

The employer had a policy providing for discharge upon the first incident of absence without notice. In lieu thereof, the employee received a one-week suspension after being absent without timely notice on January 16, 2006, and a three-week suspension after being absent without timely notice on February 14, 2006. On May 4, 2006, the employee failed to report for work and did not notify the employer of her status until early evening. She missed all of the shifts in question due to oversleeping.

The issue that must be determined is whether the employee was discharged for misconduct connected with her work.

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' within the meaning of the statute."

Normally, repeated instances of oversleeping are not considered valid reasons for missing work. The employee testified at the hearing that she took precautions to ensure that she woke up in time to go to work but was unable to wake up in spite of this fact. The employee testified that on May 4, she failed to wake up in spite of setting two alarms, as well as her telephone alarm. With respect to her January 16 absence, she had her husband call her to assure that she would wake up. Although her husband called that morning, and she answered the call, she fell asleep again and therefore failed to wake up. The employee had injured her elbow and was having problems with it through January of 2006. The employee was taking anti-inflammatory medication and believed that the medication contributed to her inability to wake up. After her discharge, the employee learned that she had a sleep disorder and at the time of the hearing had participated in a sleep study and was in the process of further testing as a result of that sleep study. She presented a note from her doctor that indicated that she might have narcolepsy and she might also experience insomnia and difficulty waking up. The employee thus had valid reasons for failing to report to work, as she was suffering from a medical condition.

Further, the commission notes that the employer's policy, as stated, is quite harsh although the employer did make some allowances for the employee. In this case, the employee was absent on three occasions. The employer's policy defines an absence without notice as failing to call two to three hours prior to the start of the employee's shift. The commission notes that the employee did give notice on each of the days in question but that the notice was inadequate under the employer's policy. While her notice was inadequate, the employee called as soon as she could, demonstrating a concern for the employer's interests. While the employer may have made a valid business decision when it discharged the employee, the employee's attendance record did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 18 of 2006, the employee was discharged, but that her discharge was not for misconduct, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2006, if otherwise qualified

Dated and mailed November 3, 2006
munroja . urr : 145 : 1  MC 605.05  MC 605.09

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ stated that he had no problems with the employee's credibility and that his determination that the employee's attendance failures amounted to misconduct was more the result of his conclusion that the employee should have realized that she had a sleeping disorder and sought treatment for it earlier. The commission agrees with the ALJ that the employee was a credible witness. However, the commission notes that it is not always easy for a layperson to realize exactly what treatment to seek for a medical condition. For example in this case, the employee thought that the problem was the result of her elbow medication. After she stopped taking medication, she was absent because of oversleeping twice in fairly close succession and her absences occurred in spite of the fact that she had taken significant precautions designed to ensure that she wake up in time to go to work. Further, the commission notes that the employee's medical diagnoses was even tentative, as in June it was opined that she had sleep apnea and hypopnea, but this was later ruled out by another doctor, who opined she was suffering from excessive fatigue and possibly narcolepsy. While the employee should have been more diligent in seeking medical treatment, the commission concludes that her failure to do so did not amount to misconduct connected with her work.

 


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