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

TERRY L BAHR, Employee

HOMETOWN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06606488MW


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 modifications:

The three full paragraphs on page 2 of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted, and the following substituted therefor:

"Wis. Stat. § 108.04(5g) does not apply in this case, since the employee had fewer than five absences without notice. Therefore, the issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

"The employee was absent three times without notice, after which he was warned that another such instance could cost him his job. This final warning was issued on May 16, 2006. The employee had no further attendance violations over the next three months, but was absent on August 22, 2006, due to illness. The employee called the employer prior to his shift to report the absence. He spoke with a co-worker, who then relayed the employee's message to the front office.

"The employee had attendance problems, but his attendance improved after his final warning. His last absence was for valid reasons and with notice to the employer. The employee's discharge under these circumstances was not for misconduct on his part."

DECISION

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

Dated and mailed March 2, 2007
bahrte . usd : 164 : 1   MC 605.05  MC 606

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the department argues that the appeal tribunal erred by concluding, in reliance on a commission decision which was subsequently set aside by the commission, that Wis. Stat. § 108.04(5g) precluded it from finding misconduct in this case. The department maintains that under a correct misconduct analysis, the standard for finding a discharge for misconduct was satisfied. The department's argument fails. While the appeal tribunal did rely on a commission decision which was set aside, Merkel v. Lang Furniture (LIRC, Oct. 19, 2006),  (1)   the facts in this case do not warrant a finding of misconduct, irrespective of any consideration of Wis. Stat. § 108.04(5g). The commission has modified the appeal tribunal decision accordingly.

In its brief to the commission the employer argues that the employee had three no-call-no-shows, followed by an unexcused absence, and that his actions evinced misconduct. It maintains that the employee's conduct was more egregious than that which the commission opined could constitute misconduct in other recent cases, citing Dougar v. Securitas Security Services USA, Inc. (LIRC, Feb. 16, 2006) and Stroud v. MJP, Inc (LIRC, June 30, 1998). The employer's argument fails. A determination as to whether misconduct has been established will depend on the facts of each case. In Dougar, the commission found misconduct because the employee had three absences without notice for invalid reasons, the third occurring only a few days after the employee was warned that three no-call-no-shows would cost her her job. In Stroud, in which the commission found no misconduct, it stated that two no-call-no-shows in a three months period could constitute misconduct, but did not suggest that this would always be the case. Here, the record indicates that the employee's attendance improved after he was given a final warning, and that his last absence was for valid reasons and with notice to the employer. The commission does not believe that these facts warrant a finding of misconduct.

cc:
Attorney Sean M. Scullen
Daniel J. Larocque



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Footnotes:

(1)( Back ) The decision was subsequently reinstated with modifications. See, Merkel v. Lang Furniture Co. (LIRC, Dec. 27, 2006). The modified decision clarifies that, while the numerical standards set forth in Wis. Stat. § 108.04(5g) can be a factor to consider in determining whether misconduct has been established, there may be instances in which misconduct will be found even when there are fewer than five absences without notice.

 


uploaded 2007/03/05