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

JIMMIE L DOTSON, Employee

ONEIDA TRIBE OF INDIANS OF WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402322AP


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, except that it makes the following modifications:

1. Delete the second and third sentences of the second paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW and insert therefor:

"On March 3, 2006, the employee telephoned the employer and stated that he would be two hours late. The employee did not report to work that day due to drug and alcohol problems."

2. Delete the seventh sentence of the second paragraph under the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW and insert therefor:

On May 11 the employee provided timely notice that he would be absent. On May 12 the employee provided late notice that he would be absent.

3. Insert as the fourth paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW the following:

"Wisconsin Statute § 108.04(5g) imposes a disqualification from benefit eligibility for an employee who is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, if the employer satisfies the requirements set forth in paragraph (d) of that subsection. For that subsection to apply, the employee must have been absent without notice on 5 occasions or more in the 12-month period preceding the date of discharge, or tardy without notice on 6 occasions or more in the 12-month period preceding the date of discharge. The employer did not establish that the employee was absent without notice on at least 5 occasions or that he was late without notice on at least 6 occasions. In addition, the employer did not satisfy the requirements set forth in Wis. Stat. § 108.04(5g)(d).

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 30 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.

Dated and mailed December 22, 2006
dotsoji . umd : 132 : 1  MC 605.05  MC 605.09  MC 606

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found the employer discharged the employee for misconduct connected with his work for the employer. The employee explains that personal circumstances adversely affected his ability to get to work and call in on time and that he sought assistance for his problems. However, the employee's absenteeism and tardiness spanned five months. The evidence did not establish that the employee was incapable of providing notice that he would not be appearing for work as scheduled or that he was physically or mentally unable to work. The employee received ample notice that his failure to appear for work as scheduled was jeopardizing his employment.



Appealed to Circuit Court.

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uploaded 2006/12/27