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

LAURIE L LANCASTER, Employee

MAPLECREST MANOR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401574AP


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 three years as a dietary supervisor and kitchen staff worker for the employer, an assisted living facility.

The employee was discharged on May 31, 2006 (week 22), for attendance deficiencies.

The employer offers the following as the basis for the employee's discharge:

6/2/05 absence-the employee provided notice/was absent due to car problems
6/8/05 no call/no show
2/9/06 no call/no show
5/13/06 tardy without notice
5/14/06 tardy without notice
5/19/06 tardy without notice (employee issued 3-day disciplinary suspension)
5/31/06 tardy without notice

The employee disputes that she was a no call/no show on 6/8/05 and 2/9/06, i.e., she agrees she was absent or tardy but contends it was with notice to the employer. The employer's evidence in support of its contention in regard to these two dates consists essentially of a document prepared by the employer's executive director from the employee's time cards, which are not part of the hearing record. Without these time cards, and without more explicit clarification from the executive director in her testimony that she actually observed and recalled that the employee was a no call/no show on those dates, it must be concluded that the employer failed to prove through competent evidence that the employee absences/tardies on 6/8/05 and 2/9/06 were without notice. Furthermore, there is simply not enough information in the record from which to determine whether the employee had a valid reason for these absences/tardies. The executive director did not testify that the employee offered or was asked for an explanation, and the employee, in her testimony, could not specifically recall the circumstances. As a result, the employer failed to prove that the employee's absences/tardies on 6/8/05 and 2/9/06 were without valid reason.

Since the record does not show that the employee used the car problem explanation to excuse an absence/tardy more than once, the 6/2/05 absence was with valid reason.

What is left then are the four incidents of tardiness, allegedly without notice, in the last three weeks of the employee's employment. All of these instances of tardiness were without valid reason, i.e., the employee testified that she overslept because, on two occasions, her dog unplugged her alarm clock, and, generally, she "was just running late."

In reviewing a discharge based on absence or tardiness without adequate notice, the first consideration is whether Wis. Stat. § 108.04(5g) applies. See, Dykstra v. Sulzer Machine & Mfg. Inc., UI Hearing No. 06201124RH (LIRC Oct. 6, 2006).

Wisconsin Statute § 108.04(5g)(a) requires that an employer's policy satisfy the criteria stated in Wis. Stat. § 108.04(5g)(d) in order for the remaining provisions of Wis. Stat. § 108.04(5g) to apply. Here, since the employer's attendance policy does not state with sufficient particularity what constitutes a single occurrence of tardiness or absenteeism, and does not specifically describe the process for providing adequate notice, within the meaning of Wis. Stat. § 108.04(5g)(d)1., the requirements of Wis. Stat. § 108.04(5g)(d) are not met here, and Wis. Stat. § 108.04(5g) does not apply.

The inquiry then turns to whether the employee's four incidents of tardiness constitute misconduct.

Under the legal standard articulated in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), mere proof of absence, however frequent, does not create a presumption that a worker has engaged in misconduct. In determining whether an employee's absenteeism constitutes misconduct, the courts and the commission have held that an employee's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, Case No. 161-399 (Wis. Cir. Ct. Dane County, Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Case No. 107-419 (Wis. Cir. Ct. Dane County March 2, 1962); Johnson v. Holiday Inn Express, UI Hearing No. 06601389MW (LIRC May 12, 2006).

Here, the employee, within a three-week period of time, had four tardies, none with a valid reason, all after warning and/or discipline, and all allegedly without prior notice to the employer.

Prior to the implementation of Wis. Stat. § 108.04(5g), the commission may have agreed with the administrative law judge and found misconduct under these circumstances. However, now that no fewer than six tardies without notice within a 12-month period would justify a discharge, and the imposition of the lower (six week/six times the weekly benefit rate) penalty under this newly enacted attendance provision, four tardies without notice, under the circumstances present here, would not support a conclusion of misconduct. See, Merkel v. Lang Furniture, UI Hearing No. 06001929MD (LIRC Oct. 19, 2006)(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).

The commission therefore finds that in week 22 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and 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 22 of 2006, if otherwise qualified.

Dated and mailed November 10, 2006
lancala . urr : 115 : 2   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 before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.



Appealed to Circuit Court.  Reversed, July 11, 2007.  [Summary of Circuit Court decision]

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uploaded 2006/11/13