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

JACQUELINE HICKS, Employee

NEW HEALTH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604373MW


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 for a homecare company as a caregiver for over three years. She was discharged May 30, 2006.

The employee worked in clients' homes providing health care. She had three separate "shifts" during her work day of approximately two hours each in three different homes. The employee reported her work times on her timesheet. The employer periodically checked on the employee's attendance by calling the client's home during the shift to determine if she was there.

In the year prior to her discharge, the employee received warnings concerning her attendance. On September 14, 2005, the employee received a written warning for being tardy without notice on September 13, 2005. On March 15, 2006, the employee received a written warning for failing to report for her 8 a.m. to 10 a.m. shift on March 10, 2006 and for calling in after the later shift started to report her absence. She was discharged because the employer believed that the employee had not appeared for her 11:00 a.m. shift on May 22, 2006.

The issue to be decided is whether the employee was discharged for misconduct.

The employer alleged that the employee was tardy once and absent three times with either no notice or late notice in the twelve month period before the discharge.
However, the employer offered contradictory evidence concerning when the employee arrived for her second shift on May 22, 2006, and whether the employee worked the first shift that day. Moreover it paid the employee for the allegedly missed early shift on that date. The employee disputed that she was absent on May 22, 2006. She admitted that she was an hour or so late that day due to car trouble. She denied missing shifts on March 10.

The burden is upon the employer to introduce competent and persuasive evidence of the alleged misconduct which led to the employee's discharge by having witnesses present at the hearing who could offer first hand testimony as to those circumstances. The employer did not meet that burden of proof in this instance.

The commission therefore finds that the employee was discharged in week 22 of 2006, but that the discharge was not for misconduct connected with her work for the employer under 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 she is otherwise qualified.

Dated and mailed December 15, 2006
hicksja . urr : 178 : 1  MC 605.01  MC 605.05  MC 606

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding the credibility of the witnesses prior to reversing. The commission concludes that the employer failed to establish that the employee was absent as alleged and therefore as a matter of law, misconduct was not established.


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uploaded 2006/12/15