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

GEORGIA L FRECHETTE, Employee

MENOMINEE INDIAN TRIBE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401718AP


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 almost two years (1)  as an administrative assistant for the employer, an Indian tribal government. The employee was discharged by letter on June 20, 2006 (week 25) for three absences without proper notice.

The employer's disciplinary policies provide for two disciplinary actions before a discharge for absence without notice. A worker is expected to provide notice of an absence within two hours of his or her start time. Whether a worker receives discipline upon the first such absence is at the discretion of the worker's supervisor.

On May 19, 2005, the employee received a written warning for failing to give notice of her absence on the previous day. The warning informed her that the next infraction would result in a three-day suspension without pay. At the time of the warning, the employee disputed that her absence was without notice and the employer's director of aging suggested that the employee verify her "call in" with another worker after leaving a voicemail message of her absence with the director.

From November 7 through 9, 2005, the employee was suspended as part of a disciplinary action for failing to give notice of her absence on October 28, 2005. In particular, the employee originally notified the employer that she would be absent in the morning but would report to work by noon. However, the employee did not report to work or contact the employer regarding her absence in the afternoon. The notice informed her that the next similar occurrence would result in "further disciplinary action up to and including termination."

On June 20, 2006, the employee was discharged by letter for her absence that day without notice. This last absence was due to an ongoing personal issue for which the employee entered in-patient treatment on June 21, 2006.  
 

Procedural Irregularity

Following a review of the synopsis and the digital record, a procedural irregularity was noted and highlights a difficulty with telephone hearings. In particular, the employer's witnesses failed to follow proper hearing procedures, resulting in confusion regarding who was testifying, whether the individual was under oath and whether the employee had the opportunity to cross-examine all employer witnesses.

Thus, prior to review of the merits of the employee's petition asserting that her discharge was not for misconduct, the commission must first decide whether the parties were afforded a reasonable opportunity to be heard within the meaning of Wis. Stat. § 108.09(4)(a).  (2)

Wis. Stat. § 108.09(5)(a) provides, in relevant part, that

. . . the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure for determining the rights of the parties.

Wis. Admin. Code § § DWD 140.16 (1) and (2) provide that the "[s]tatutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling" with the administrative law judge charged with the responsibility to "secure the facts in as direct and simple a manner as possible."

Wis. Admin. Code § DWD 140.15 (1) requires that all testimony be given under "oath or affirmation" with the administrative law judge administering the oath or affirmation to each witness and with each party "given the opportunity to examine and cross-examine witnesses."

In this case, both parties appeared by telephone. Appearing on behalf of the employer was Ms. Okimosh, the employer's representative/the employee relations coordinator, and Ms. Kotschi, the employer's witness/the aging director; they participated sharing a speakerphone together. After taking position statements and explaining the hearing procedures,  (3)  the administrative law judge asked Ms. Okimosh who would be testifying on the employer's behalf. Ms. Okimosh indicated that Ms. Kotschi would be the witness and that she, Ms. Okimosh, did not plan to provide testimony.

The administrative law judge administered the oath to Ms. Kotschi and began questioning her. Then, unbeknownst to the administrative law judge, during the questioning of Ms. Kotschi, Ms. Okimosh started answering the administrative law judge's questions.  (4)   Approximately 17 minutes into the digital record, the administrative law judge realized that Ms. Okimosh was answering questions on behalf of the employer. The administrative law judge attempted to "clean this up" by verifying that Ms. Okimosh understood that her statements were under oath, and asking the employee whether she had any questions for Ms. Okimosh. Thereafter, the administrative law judge reprimanded the employer's representative for this improper behavior. During the reprimand, it became clear that Ms. Okimosh was not the individual originally placed under oath. The administrative law judge administered the oath to Ms. Okimosh and determined at what point Ms. Okimosh improperly started answering questions. Thereafter, the administrative law judge resumed questioning Ms. Kotschi. When the administrative law judge concluded questioning Ms. Kotschi, she gave both Ms. Okimosh and the employee the opportunity to question her.

While the employee was not specifically allowed the opportunity to question Ms. Okimosh after the oath was administered to her, at 43:58 on the digital record, the administrative law judge asked, "Anything else from either party that you'd like to say or question each other about, Ms. Frechette?" Ms. Frechette, the employee, answered, "No."

While certainly not an ideal situation, the commission finds that the administrative law judge's actions afforded the employee a reasonable opportunity to cross-examine the employer's witnesses. Additionally, the employee did not raise any procedural concerns in her petition or request the opportunity to ask questions of the employer's witnesses. The commission therefore will not remand the matter for an additional cross-examination opportunity.  
 

Application of Wis. Stat. § 108.04(5g)

Effective for separations occurring on or after April 2, 2006, the legislature has determined that individuals who are absent 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). Further, 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 the decision maker to address the applicability of Wis. Stat. § 108.04(5g) before addressing whether the discharge was for misconduct under Wis. Stat. § 108.04(5). 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.

In this case, given the supervisory discretion in applying disciplinary action to workers who were absent without notice and the fact that the employee did not have a sufficient number of absences without adequate notice to fall within the purview of Wis. Stat. § 108.04(5g), this provision does not apply. 
 

Application of Wis. Stat. § 108.04(5)

The commission must next decide whether the employee's discharge was for misconduct under Wis. Stat. § 108.04(5) when a similar termination under Wis. Stat. § 108.04(5g) would not satisfy the numerical requirements for a lesser disqualification. (5)

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.

While the commission declines to treat the numerical standards set forth in Wis. Stat. § 108.04(5g) as an absolute floor in reaching a conclusion of whether misconduct under Wis. Stat. § 108.04(5) has been established, those standards must be a factor for consideration in addressing what are the standards that an employer has a right to expect within the meaning of Boynton Cab. Recently in Merkel v. Lang Furniture, UI Dec. Hearing No. 06001929MD (LIRC, October 19, 2006), the commission found that a worker who was absent three consecutive days without notice and then, the next week, was late two and one half hours without notice, was not discharged for misconduct connected with the employment. In supporting the no misconduct finding, the commission in the Memorandum Decision, stated:

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.

In this case, the employee was absent without proper notice three times in 13 months. The employer did not allege that the absences were for invalid reasons and the employee testified to personal difficulties that resulted in in-patient treatment following the last such absence. Prior to the last incident the most recent incident was over seven months earlier. These facts together with the fact that this situation fails the numerical standard for disqualification in Wis. Stat. § 108.04(5g) leads the commission to conclude that the employee's discharge was not for misconduct connected with her employment as that phrase has been defined above.

The commission therefore finds that parties were afforded a reasonable opportunity to be heard, within the meaning of Wis. Stat. § 108.09(4)(a).

The commission further finds that in week 25 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 finally finds that in week 25 of 2006, the employee's discharge was not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2006, provided she is otherwise qualified.

Dated and mailed November 10, 2006
frechge . urr : 150 : 150 PC 729  MC 606   MC 605.05 MC 605.09

/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. Instead, the reversal is based upon the undisputed facts in the record, the requirement that the applicability of Wis. Stat. § 108.04(5g) be addressed prior to Wis. Stat. § 108.04(5) and because the commission has reached a different legal conclusion as to whether the employee's absences without notice constituted misconduct.


Appealed to Circuit Court.  Reversed, September 4, 2007.   [LIRC decision on remand]

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Footnotes:

(1)( Back ) While the administrative law judge found that the employee worked approximately one year for the employer, the employee provided undisputed testimony that she was hired by the employer on July 12, 2004.

(2)( Back ) Wis. Stat. §108.09(4)(a) provides,

Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.

(3)( Back ) The administrative law judge did not specifically explain the employee's right of cross-examination.

(4)( Back ) Also, after Ms. Okimosh started answering questions instead of Ms. Kotschi, Ms. Kotschi began speaking to Ms. Okimosh. The administrative law judge, apparently still under the impression that Ms. Kotschi was testifying, admonished the employer's witnesses for talking amongst themselves and asked Ms. Okimosh if she understood. Unfortunately, when the administrative law judge confronted the representative, Ms. Okimosh, about the unauthorized conversation, Ms. Okimosh indicated "Joyce" was talking in the background and the administrative law judge did not realize that Joyce Kotschi was the individual to whom the oath was originally administered and who started testifying on the employer's behalf.

(5)( Back ) The Wis. Stat. §108.04(5) misconduct disqualification renders a worker ineligible for benefits for seven weeks after the discharge and until the worker has earned wages equal to at least fourteen times his/her weekly benefit rate.

 


uploaded 2006/11/13