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

BRANDON M FOURNIER, Employee

SPEE DEE DELIVERY SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402074GB


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 28 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. The previously issued monetary computation is set aside and the employee's benefit year does not begin on July 9, 2006.

Dated and mailed November 25, 2006
fournbr . usd : 115 : 2    MC 606 MC 605.05  MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee was discharged for attendance deficiencies. In reaching this decision, the employer considered the last six months of his attendance record. This record included the following: 
  
1/6/06

1/20/06

2/6/06

2/14/06

2/16/06 


3/2/06

3/3/06

3/29/06

3/30/06

5/16/06

6/1/06

7/3/-7/7/06
 
7/10/06

7/10/06
absent due to illness

late 20 minutes

late 17 minutes

left work early due to illness

received attendance warning for unexcused absences which tated that improvement required or further unauthorized absences would be grounds for termination

late 4 minutes

late 6 minutes

late 28 minutes

late 14 minutes-delayed by accident on bridge

absent due to illness

late 38 minutes due to illness

approved vacation

no call/no show-scheduled to begin work at 7:30 a.m., overslept until 10:30 a.m., phoned employer at 3:45 p.m.

scheduled to begin work at 7:00 a.m., overslept and called employer at 7:28 a.m.-did not report to work
 

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 Statutes § 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, the requirements of Wis. Stat. § 108.04(5g)(d) are not met, and Wis. Stat. § 108.04(5g) does not apply.

The inquiry then turns to whether the employee's attendance record satisfies the general misconduct standard.

Here, the employee, within a six-month period of time, had five incidents of tardiness without valid reason prior to his July vacation, ranging in length from 4 to 28 minutes, three after his 2/16/06 warning. Then, the first two days he was scheduled to work after returning from this vacation, the employee was essentially a no call/no show the first day, oversleeping and not even attempting to contact the employer until 3.5 hours after his 7:30 a.m. start time and not succeeding in contacting the employer until 3:45 p.m. even though he admits there was a toll-free number he could have called; and oversleeping the second day and not phoning the employer until 7:28 a.m., even though he was aware that he was scheduled to come in to talk to his supervisors at 7:00 a.m. that day about his attendance deficiencies.

The employee's record of five incidents of tardiness without valid reason, followed by two particularly egregious attendance failures, occurring as they did without adequate notice and immediately following a week of vacation, and the first reflecting little if any effort on the part of the employee to get in touch with the employer, support a conclusion of misconduct.



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uploaded 2006/11/27