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

DEBRA L DIENER-CRAWFORD, Employee

BESTWAY TRANSFER & STORAGE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603964MW


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 modification:

Replace the ninth paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

The appeal tribunal further finds that in week 18 of 2006, the employee was discharged by the employing unit, within the meaning of section 108.04(5) of the statutes, and that this discharge was not for misconduct connected with the employee's work within the meaning of that section.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2006, if otherwise qualified.

Dated and mailed January 31, 2007
dienede . umd : 150 MC 605.091  MC 626

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee should not be entitled to unemployment insurance benefits or, at least, that the State of Wisconsin should absorb the cost of the unemployment benefits to the employee.

The first step to address the employer's arguments is to determine the nature of the separation of employment. Pursuant to Wis. Stat. § 108.04(7), a worker who quits his or her employment is generally ineligible for benefits unless he or she establishes that his or her quitting falls within an exception to allow for immediate benefit payment; certain of those exceptions result in the charging of an employer's account while others result in a "noncharge" to a covered employer's account with charges instead assessed to the balancing account. Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits and the wages earned in that employment cannot be used in the future for benefit payment; conversely, a worker whose discharge is not for misconduct is eligible for benefits based upon that employment, as long as the worker remains otherwise qualified for benefits.

Essential to determining whether a separation is a quit or a discharge is whether the employee shows that she intends to leave her employment, and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employment relationship. Nottelson v. DILHR Department, 94 Wis.2d 106, 287 N.W.2d 763 (1980); Holy Name School v. DILHR, 109 Wis.2d 381, 326 N.W.2d 121 (Ct. App. 1982); Janzen v. Roehl Transport, Inc., UI Dec. Hearing No. 02000217MD (LIRC Jan. 31, 2003); Cotton v. Crown Services, UI Dec. Hearing No. 03607152MW (LIRC April 15, 2004); Sawyer v. Scanhome Ltd., UI Dec. Hearing No. 04403391GB (LIRC December 14, 2004).

In this case, the employer's attendance policy provided that a worker's absence from work without notification in excess of three consecutive working days would be considered a voluntary termination of employment. Yet, the employer's policy also provided that if "an employee is absent for three (3) consecutive days and proper notification has not been given, the employee will be discharged." Other than sudden illness or emergencies which required at least one hour prior notice of absence, the employer expected that excused absences "be arranged with the Company's President at least one (1) day in advance of such absence." "All other absences, including those with improper notification, will be considered unexcused." The policy also provided that "excessive absenteeism shall be considered to be any cumulative time missed in excess of Five (5) days during the previous twelve (12) months of employment," with a written warning issued for all excessive absenteeism. "Failure to notify the Company one (1) hour prior to the scheduled start time on every day of absence" and "[b]eing absent or tardy without reasonable cause, or being absent or tardy excessively even with cause" were considered minor company work rule violations, normally resulting in graduated disciplinary steps leading to discharge after proper warning.

After work on Wednesday, April 26, 2006 (week 17), the employee was arrested and incarcerated on drug related charges. She was absent from work Thursday, April 27, 2006 and Friday, April 28, 2006. Her Thursday absence was without notice to the employer. At approximately 11 a.m. on Friday, April 28, 2006, the employee's mother contacted the employer's president regarding the employee's continuing absence without notice. The president was concerned about the employee and asked why she was absent. The employee's mother, who was disappointed in her daughter, declined to tell the president of the incarceration; she only informed him that her daughter was not ill, nor was her husband and that the employee might be back to work on Thursday, May 4, 2006. The employee had been previously granted vacation for Monday and Tuesday, May 1 and 2, 2006. After speaking with the employee's mother, the president decided to discharge the employee on Friday, April 28, 2006, citing the employee's failure to call in or make herself available for work when needed. In particular, that week was extremely busy for the employer as it was its peak season and the employer was short staffed with the operations manager on leave.

The employee was bailed out of jail at 4 p.m. on Tuesday, May 2, 2006 and immediately contacted the employer. The president was out of the office that week, so the employee discussed the matter with the operations manager. He directed her to report to work early the next morning, Wednesday, May 3, 2006. When she did so, she was notified of the discharge.

The commission agrees with the administrative law judge's finding that the employee's actions were not so inconsistent with the employment relationship as to evince a quitting. The employee was absent two consecutive days without proper notice, when her mother contacted the president on her behalf. The mere fact that her mother was unable to provide the president with specifics about the employee's exact return and declined to tell him of her incarceration did not evince an intention to quit the employment relationship. Instead, the president decided to sever the employment relationship by discharging the employee on Friday, April 28, 2006.

With respect to the misconduct issue, the commission has generally held that absences due to incarceration are not for valid reasons if the incarceration is due to the employee's fault. Hyler v. Regal-Beloit Corp., UI Dec. Hearing No. 97002837JV (LIRC August 27, 1997). Further, in Hyler, the commission held that:

The standard for evaluating fault is whether the employe wilfully and intentionally started the chain of events which led to his being unavailable for work. The end result must be directly related to the beginning of the course of conduct. Schweikert v. Ganton Technologies, Inc, UC Hearing no. 91-606281RC (LIRC Mar. 24, 1992).

The hearing record in this matter reflects that the employee had been charged but not convicted. She testified that she entered a not guilty plea and the ALJ did not question the employee about her culpability in the incarceration. Assuming arguendo that the employee was at fault in her incarceration, her absences without proper notice on Thursday and Friday were not for valid reasons. Yet, this was her first occurrence of improper absences without notice in her 18 months of employment. She had not been warned such behavior jeopardized her job and, in fact, the employer's policies do not call for discharge until a third consecutive absence without notice or after additional absences and warning under the excessive absenteeism prong of the policy. As such, while the president certainly made a valid business decision in opting to discharge the employee on Friday instead of waiting to see when she would return to work, the employee's conduct did not evince a willful or intentional disregard of the employer's interests or of the standards of conduct it had a right to expect. The commission therefore affirms the no misconduct finding and adopts the appeal tribunal decision as its own.

cc:
Attorney Victor E. Plantinga
Attorney Mark G. Blum


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