LAURIE M GOSHA, Employee
PAYLESS SHOESOURCE INC, Employer
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
The employee worked for approximately thirteen months as a team leader for the employer, a retail shoe business. Her last day of work was July 21, 2006 (week 29).
On May 9, 2006 (week 19), the employee was scheduled to attend a managers' meeting at 8:00 a.m. She was fifteen minutes late because she had started as a volunteer crisis responder, and she had been called in to assist with a suicide call at 2:00 a.m. She did not expect that her volunteer work would interfere with her job with the employer, but time got away from her and she reported for the meeting as soon as she was able. She was seven minutes late in punching in for work on May 10, 2006 (week 19), because it took a long time for the computer to download, and she was unable to punch in before the download was completed. On May 16, 2006 (week 20), she was 45 minutes late in reporting to work. She was late in arriving to work on May 17, 2006 (week 20) because she stopped at another store on her way to work to pick up and deliver its bank deposit. She was warned on May 17, 2006 (week 20) for these incidents of tardiness. Because she was late in reporting to work on May 27, 2006 (week 21), she was issued another warning.
The employee had a flat tire on her way to work on June 6, 2006 (week 23). She contacted the employer to explain her problem and arranged for another worker to fill in for her until she was able to fix the flat and proceed to work. She was 45 minute late on that day. Although she was scheduled to work on June 22, 2006 (week 25), her grandmother had a stroke, and was hospitalized in Green Bay. The employee notified the employer that she would not be able to work that day. Because the employer had been unsuccessful in getting a replacement, she later agreed to work that day. The employee considered her to be four and one-half hours late for work that day. The employee received notice that her electricity would be shut off as of June 26, 2006 (week 26) because her bill was in arrears. Her father, who lives with her, had medical issues, so she was two and one-half hours late for work on June 25, 2006 (week 26), since she was trying to make necessary financial arrangements. She was told by her immediate supervisor that her job was in jeopardy, and that the supervisor intended to look for a replacement. The employee asked for another chance.
The employee was scheduled to work at 7:00 a.m., on July 6, 2006 (week 27), and reported to the store on time. However, the store was locked and no one let her in until 7:10 a.m. On July 24, 2006 (week 28), the employee was fifteen minutes late in reporting to work because she had picked up and delivered a bank deposit for another store on her way to work. She was discharged on July 21, 2006 (week 29), for excessive tardiness.
Effective for separations occurring on or after April 2, 2006, the legislature has determined that individuals who are tardy on six or more scheduled workdays in a 12-month period without adequate notice to the employer, where the employer has a uniformly applied written policy on notification of tardiness that satisfies certain statutory requirements, and where it has been shown that the employee received a copy of the policy and received at least one warning under the policy, 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. See Wis. Stat. § 108.04(5g).
The above-cited provision does not apply in this case. Although the employer has a written attendance policy, the employer's policy does not satisfy the requirements set forth in Wis. Stat. § 108.04(5g), and the employer provided no written evidence that the employee received a copy of the policy. Further, the employee did not have a sufficient number of lates without adequate notice to fall within the purview of Wis. Stat. § 108.04(5g).
Having concluded that Wis. Stat. § 108.04(5g) does not apply, the next question to decide is whether the employee was discharged due to misconduct.
The employer asserted that the employee was discharged for excessive tardiness, and contended that her discharge was for misconduct connected with her employment. The employer's contention cannot be sustained. In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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."
The employer was concerned about the employee's tardiness, and did warn her about her failure to report on time. However, she was not late on those occasions when she stopped at another store to pick up deposits from the prior day's sales, and deposit them at the bank on her way to work. There were occasions when she entered her time late because she had to wait for the computer to download. She was also not late on July 6, 2006 (week 27), since she reported on time, but was not let into the store until ten minutes later. She was not going to report at all on June 22, 2006 (week 25), because of her grandmother's sudden illness and hospitalization, but she later agreed to come in to work the rest of her shift since the employer was unable to get a replacement. Her "tardiness" on that day was for a valid reason. Her tardiness on June 6, 2006 (week 23), because of her unexpected flat tire, was also for a valid reason, and with proper notice to the employer.
The employee showed poor judgment when she reported fifteen minutes late for the managers' meeting on May 9, 2006 (week 19). She did not carefully monitor her time, and let her volunteer activity interfere with her job. She also could have been more attentive to her financial obligations, and not waited until she was scheduled to work on June 25, 2005 (week 26), the day before her utility was to be shut off, to try to make frantic arrangements for payment. Her tardiness on that day was not for a valid reason. It was not established that the incidents of tardiness on May 16, 2006 (week 20) and May 27, 2006 (week 25) were for valid reasons. These incidents were not excusable, but they must be considered insolated incidents of poor judgment which do not rise to the level of misconduct specified above.
While the employer may have made a valid business decision in discharging the employee, the evidence on the whole does not demonstrate that the discharge was for misconduct connected with the employee's employment, as that phrase has been defined in the statutes and case law summarized above.
The commission therefore finds that in week 29 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 the employee's discharge was not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2006, if otherwise qualified.
Dated and mailed December 28, 2006
goshala . urr : 164 : 1 MC 606 MC 605.09
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
As noted in the body of the commission's decision, a recently-enacted provision, Wis. Stat. § 108.04(5g), may apply in circumstances in which an employee is discharged for failure to notify the employer of absenteeism or tardiness. While the misconduct statute, Wis. Stat. § 108.04(5), denies unemployment insurance to a worker who is discharged for misconduct connected with the employment, the subsection's language, "unless sub. (5g) applies," requires an initial determination as to whether Wis. Stat. § 108.04(5g) applies to disqualify in those cases in which absence or tardiness without adequate notice is at issue. See Dykstra v. Sulzer Machine & Mfg. Inc (LIRC, October 6, 2006). Further, in order to disqualify an employee based upon tardiness under sub. (5g), it must be shown that the individual was late to work on six or more scheduled workdays without adequate notice. A finding that an employee's tardiness was "typically" with notice does not assist in a determination as to whether the employee had a sufficient number of lates to fall within the purview of Wis. Stat. § 108.04(5g). The commission has rewritten the appeal tribunal decision to reflect this analysis and to correct an erroneous finding that it was not established the employee's tardiness on May 10, 2006, was for a valid reason. The appeal tribunal found that on May 10 the employee was tardy because it took a long time for the computer to download and she was unable to punch in before the download was completed. It was the May 16 tardy for which no reason was provided.
In the petition for commission review the employer's agent argues that the employer's testimony was not given full weight and that misconduct was established. The employer's agent asserts that the employee was aware of "the severity of consequences in regarding [sic] to being tardy or absent without approval" and was in a position of authority requiring her to set an example for those in lesser positions. These arguments fail. The evidence adduced at the hearing established that prior to her discharge the employee was late for work on four occasions for reasons that were not shown to be valid. The commission agrees with the appeal tribunal that, while the employee did not have a model attendance record, her attendance was not sufficiently egregious as to rise to the level of misconduct. The appeal tribunal's conclusion that the employee was not discharged for misconduct is, accordingly, affirmed.
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Payless Shoesource, Inc. (Oshkosh, Wisconsin)
Sandy Smith
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