JEFF H KUMM, Employee

SJOBERG TOOL & MFG CORP, Employer

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:

The employee worked for about 14 months as a machine operator for the employer, an operator of a sheet metal products job shop business. His last day of work was August 18, 2006 (week 34).

The employer has in effect a no-fault attendance policy which provides for points to be assessed for attendance infractions. A worker accumulating five points is subject to dismissal. Because the employee was late four days, left work early one day and was absent five days, he was discharged. On October 13, 2005 (week 42), he was ill. On October 18, 2005 (week 43), he took his girlfriend, who was pregnant, to the doctor because of the onset of troublesome symptoms. On December 27 and 28, 2005 (week 53), he left early and then did not report for work because of illness. On June 10, 2006 (week 23), a point was deducted because he went three months without an incident. He was then absent from work on July 24, 2006 (week 30), in order to register a car for his father. On August 21, 2006 (week 34), he was absent because his car was broken into and did not operate. He had received a verbal warning and a written warning in October 2005, a final written warning in January 2006, and a two-day disciplinary suspension in March 2006, all as part of the progressive discipline provided for in the attendance policy. On August 8, 2006 (week 32), he was issued a second two-day disciplinary suspension after he was late to work on August 7, 2006 (week 32), putting him at 4.5 points, including .25 points erroneously assessed in November 2005. His absence of August 21 put him at 5.5 points, .5 above the limit, and he was discharged.

The issue presented is whether the employee was discharged for misconduct connected with the work under Wis. Stat. § 108.04(5).

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 in this case was absent for valid reasons, apart from the day that he failed to report to work because he registered his father's car. The commission further notes that his final absence was caused by the fact that his car was broken into and would not operate. The incident was unexpected and beyond the employee's control. The employee was tardy, and his tardiness was not for valid reasons. However, when considering his entire attendance record, the commission concludes that his actions did not evince such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 34 of 2006, the employee was discharged, but that his discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2006, if otherwise qualified.

Dated and mailed February 28, 2007
kummje . urr : 145 : 1 MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the employee was credible when he testified about his final absence. The ALJ indicated that the employee was responsive in his testimony and gave specific details about the incident. However, the ALJ noted that the employee did not have valid reasons for his tardiness. While the employee did not generally have valid reasons for being tardy, the commission, when it considered the fact that all but one of the employee's absences were for valid reasons, and the fact that there were only four instances of tardiness considered in the employee's discharge, concluded that his attendance record as a whole did not amount to misconduct.

cc: Attorney Andrew T. Phillips

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/03/02