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

TALARA J HARTMAN, Employee

WAUWATOSA DAY CARE & LEARNING CENTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605871MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 32 of 2006, if otherwise qualified.

Dated and mailed March 1, 2007
hartmta . usd : 115 : 1  MC 606  MC 605.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


The employee worked about 1.5 years as a lead teacher for the employer, a child care center. During the last twelve months of her employment, the employee was tardy nine times, absent twice due to illness, and twice was recognized by the employer for having perfect attendance for a three-month period. The employee's last two tardies occurred on July 11, 2006, when her husband stepped on a piece of glass and she stayed home to attend to his injury; and August 10, 2006, when she was three minutes late due to constructions delays on the route between her home and the work site.

Wisconsin Statutes § 108.04(5g) is not applicable here because lack of proper notice was not the basis for the employee's discharge. Moreover, even if notice were an issue, this statutory provision would not apply because, contrary to the requirement stated in Wis. Stat. § 108.04(5g)((d)1.c.,  i.e., that the employer's written policy notify the employee "that failure to provide adequate notice of...tardiness may lead to discharge," the employer's policy (exhibit #2) addresses the issue of notice only within the context of absences, not within the context of tardiness.

Moreover, applying the general standard enunciated in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the employee's attendance record does not rise to the level of misconduct.

Generally, absences with notice and for valid reasons will not support a conclusion of misconduct. See, e.g., Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375 (LIRC Feb. 14, 2001). The employee's only two absences during the last twelve months of her employment were due to illness, a valid reason.

What remains then are her nine tardies. The fact that the employee had only two tardies in her last two months of employment, one due to a medical emergency, a valid reason, demonstrates a serious recent effort by her to correct her tardiness record (see, Harmon v. Ameritech Services, Inc., UI Hearing No. 02607385MW (LIRC April 8, 2003) (serious recent effort by employee to correct performance deficiency a relevant mitigating factor in misconduct inquiry). In addition, although four of the employee's nine tardies (5/18. 06, 5/13/06, 6/5/06, and 8/10/06) were due to construction delays which, at some point, the employee should have begun to anticipate (1), there were significant mitigating factors in regard to the remaining five tardies (husband injured, animal for which she was caring ran away and she needed to find it before leaving for work, storm knocked out the power to her home and her alarm did not go off, (2)  and she was unfamiliar with the remote locking system on her new car). Moreover, the employer did not successfully rebut the employee's testimony that all but four of the fourteen tardies she accumulated during the course of her employment were for five minutes or less. Although the employer, in its petition, asserts that even this short period of time could compromise its ability to meet licensing requirements, this fact is not of record. The employee's tardiness record, viewed as a whole, does not support a conclusion of misconduct.



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Footnotes:

(1)( Back ) See, Rincon v. Bank One Wisconsin, UI Hearing No. 01607055MW (LIRC March 12, 2002).

(2)( Back ) See, Downs v. Quality State Oil Co., Inc., UI Hearing No. 98400938EC (LIRC Aug. 12, 1998) (although oversleeping not a valid reason for absence, fact that employee's alarm did not go off as the result of power failure is factor mitigating degree of employee's fault).

 


uploaded 2007/03/05