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

ZONNIE A GUEYE, Employee

TRUGREEN L P, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605692WK


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 about sixteen weeks as a data entry person for the employer, a lawn care company. Her last day of work was on July 18, 2006 (week 29).

The employee was tardy on April 10, April 13, April 17, April 24, April 26, April 28, May 1, June 14, June 16, and July 19, 2006. The employee received multiple warnings during her employment for tardiness and absenteeism and received a third and final warning on June 22, 2006, that tardiness was not acceptable and could lead to her discharge. The employer discharged the employee when she was nine minutes late on July 19, 2006.

The initial issue to be decided is whether the employer discharged the employee for excessive tardiness. Wis. Stat. § 108.04(5g), provides as follows:

DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.

(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(d)  1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:

a. Defines what constitutes a single occurrence of tardiness or absenteeism;

b. Describes the process for providing adequate notice of tardiness or absence; and

c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.

2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.

3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1 within the 12-month period preceding the date of the discharge.

4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.

The record in this case does not clearly indicate how many times the employee was tardy without notice to the employer. Further, the employer did not establish that the employee received its policy. In addition, the employer's testimony indicated that the employer was trying to work with the employee and for that reason it did not discharge her earlier when it could have pursuant to its policy. The record therefore indicates that the policy was not uniformly applied.

The commission therefore finds that in week 29 of 2006 the employer did not discharge the employee for failing to notify the employer of absenteeism or tardiness that was excessive within the meaning of Wis. Stat. § 108.04(5g).

The next issue to be decided is whether the employer discharged the employee for misconduct connected with her work for the employer.

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."

The employee was tardy on a number of occasions due to transportation issues. The employee also attributed a few of her absences to her father's illness. The employee could not recall why she was tardy on a number of dates. Overall, the employee did not show that her tardiness was for valid reasons. It is the employee's responsibility to arrange for reliable transportation. Although the number of times cannot be definitely ascertained on this record, the employee did not always provide notice to the employer that she would not be appearing for work as scheduled. The commission concludes that the employee's ongoing tardiness, after warning, demonstrated an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee.

The commission further finds that in week 29 of 2006, the employer discharged the employee for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,760.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether the employee was improperly paid benefits due to employer and/or employee fault.

Wis. Stat. § 108.04(13)(c) and (g), provide that, if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which the redetermination or appeal tribunal decision is issued regarding this matter remains as paid, unless the employer had good cause for the failure to provide the information.

In this case, the employer did not provide information requested by the department regarding the actions that led to the employee's discharge and warnings the employee received during her employment. At the hearing, the employer offered no explanation for failing to provide the requested information. Therefore, the employer's failure was not for good cause and constitutes employer fault. Accordingly, benefits paid to the employee prior to the end of week 41 of 2006, when the appeal tribunal decision was issued, will remain charged to the employer's reserve account. There is no evidence of employee fault in this case. Pursuant to Wis. Stat. § 108.04(13)(c), no overpayment is created.

The commission further finds that the employer failed, without good cause, to provide correct and complete information requested by the department during a fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (g).

The commission further finds that benefits of $1,760.00 paid erroneously as a result of the employer's failure to provide information and without employee fault are not overpaid and shall remain charged to the employer's reserve account, pursuant to Wis. Stat. § 108.04(13)(c) and (g).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2006, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. There is no overpayment as a result of this decision.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed January 26, 2007
gueyezo . urr : 132 : 1 :  MC 606  MC 605.09  MC 678  BR 319.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Trugreen L P (Waukesha, Wisconsin)
Charles H. Armitage


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