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

KIM WOODRUM, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002681JV


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 over 13 years as an accounts payable worker for the employer, a retail grocery corporate office. Her last day of work was June 7, 2006 (week 23), when she was discharged for exceeding the employer's no-fault attendance policy.

The employer's no-fault attendance policy provides for discharge upon the accumulation of six points in a rolling calendar year. A worker is expected to punch in to work, in from lunch and in from two breaks a day. A worker who punches in three or more minutes late and misses one-half his or her shift or less is assessed a 1/2 occurrence point. A 1/2 occurrence is also defined as:

an accumulated combination of any 3 (A, B or C) in one month is an occurrence: Maximum 1-2 minutes A. Late for work, B. Late back from lunch, C. Long breaks. See Exhibit 1, page 16.

The policy further provides that a 1/2 point is removed from a worker's accumulated point total whenever the worker completes a month "without an occurrence."

In the last year of the employee's employment, she was less than three minutes late in punching in on July 2 and 21, 2005, August 1, 2005, November 4, 2005, January 11, 18, 20 and 28, 2006, February 1 and twice on February 2, 2006, March 4, 10, 14, 15, 28 and 30, 2006, April 1 and 6, 2006 and May 13 and 31, 2006. The employee was late to work over three minutes on October 6 and 24, 2005, January 5, 2006, March 3, 2006, April 3, 2006 and June 3, 2006.

On April 27, 2006, the employee signed a last chance agreement warning her that further attendance points would result in termination. She was informed that, as of March 30, 2006, she had accumulated 5 points. (1)

On June 3, 2006, the employee was 57 minutes late when she overslept. She was assessed 1/2 an occurrence point. The employee was discharged on June 7, 2006; the discharge documentation indicated that the employee exceeded the points allowed under the no fault attendance policy. (2)

Towards the end of the employee's work for the employer, she was seeking medical treatment for various issues. The employee notified the employer of her difficulties and testified that she was late on the last occasion based upon prescription medication that caused her to oversleep. To support her claims, the employee offered a letter from her doctor.

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 commission to address the applicability of Wis. Stat. § 108.04(5g) in this attendance case 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). (3)

Wis. Stat. § 108.04(5g) provides that individuals who have been discharged for absences without adequate notice to the employer, and who satisfy the statutory requirements set forth in that subsection, 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 her weekly benefit rate. In this case, the employee was not discharged for a failure to give adequate notice of absences or tardies but for the absences and tardies themselves. Thus, her discharge does not fall within the purview of Wis. Stat. § 108.04(5g).

The commission will next decide whether the employee's discharge was for misconduct under Wis. Stat. § 108.04(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.

A continuing pattern of tardiness may certainly constitute misconduct; yet, in Harmon v. Ameritech Services Inc., UI Dec. Hearing No. 02607385MW (LIRC April 8, 2003), the commission held that more should be done than a "mere totaling of the number of occurrences." In particular, the commission also considered whether the worker's attendance showed any trend towards improvement, signaling an attempt to correct his or her poor attendance, and the amount of time involved to help determine the seriousness of the conduct and the effect on the employer's interests. See Harmon.

In the last year of employment, the employee punched in one to two minutes late 21 times. By comparison, she was required to punch in four times per day, twenty times per week or 1,040 times per year. She had six incidents of tardiness over three minutes in length in the prior year and no total absences resulting in occurrence points. Prior to the final incident on June 3, 2006, she was not assessed any occurrence points in May. This record, especially in light of the commission's concerns regarding the propriety of employer's application of the policy to the employee, leads the commission to find that the employee's actions did not exhibit such a "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 show "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 her employer.

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 commission further finds that in week 23 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 23 of 2006, provided she is otherwise qualified.

Dated and mailed November 17, 2006
woodhki . urr : 150 :  MC 606  MC 605.09

/s/ James T. Flynn, Chairman

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 and because the commission has reached a different legal conclusion as to whether the employee's tardiness constituted misconduct.



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Footnotes:

(1)( Back ) The record does not reflect the reason for the approximate one-month delay in notifying the employee of her five-point status and warning that, "Further points may result in termination." In particular, as of April 27, it appears that the employee accumulated another 1/2 point for her tardiness on April 3, 2006.

(2)( Back ) Although the employee was not assessed any occurrence points in May 2006, it does not appear that a 1/2 occurrence point was removed from her accumulated total as provided by the policy.

(3)( Back ) Wis. Stat. § 108.04(5g) became effective for separations occurring on or after April 2, 2006.

 


uploaded 2006/11/20