IDA A RHODES, Employee

VAN RU CREDIT 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 as a collector for the employer, a collections business, for twenty months. Her last day of work was August 23, 2006 (week 34), when she was discharged.

The employee was discharged for excessive absenteeism. In June 2005, the employer gave the employee a warning for working fewer than forty hours per week in three pay periods. Thereafter, her attendance improved substantially. The employee was absent with notice August 4, 2006 and August 14, 2006. She received a warning and a suspension as a result. She was absent again with notice on August 22, 2006. The employer discharged the employee for excessive absenteeism on August 23, 2006.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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."

While the employer argued that the employee was discharged for excessive absenteeism, it failed to establish willful misconduct. The employee's attendance improved dramatically after she was warned in 2005. The commission cannot conclude based on the evidence in this record that three occasions of absence with notice in a year amounts to a deliberate and substantial disregard of the employer's interest. While the employer made a reasonable business decision to discharge the employee, it has failed to establish that the discharge was for misconduct.

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

Dated and mailed February 28, 2007
rhodeid . urr : 178 : 1 MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission does not reverse based on any differing assessment of witness credibility. The commission disagrees that the employer established misconduct.

cc: Van Ru Credit Corp. (Milwaukee, Wisconsin)

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uploaded 2007/03/02