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

KELLIE L DERENDINGER, Employee

ST MARYS CARE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06004730MD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately one year as a certified nursing assistant for the employer, a long term care and short term rehabilitation center. The employee's last day of work was October 2, 2006 (week 40).

The initial issue to be decided is whether the employee quit or was discharged by the employer. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged by the employer, a secondary issue is whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer under Wis. Stat. § 108.04(5g) and/or whether that discharge was for misconduct connected with her employment under Wis. Stat. § 108.04(5).

The employer has a written no fault attendance policy which provides that a worker is considered late if he or she punches in more than seven minutes after the beginning of his or her scheduled shift. An "absence occurrence" is defined as one or more consecutive days of absence from work either excused or unexcused. Workers are required to contact the nursing supervisor or scheduler prior to their shift if they are unable to work as scheduled. The policy puts workers on notice that they may be terminated if they fail to call in prior to their scheduled shift. The employer's progressive discipline policy provides that a worker will receive a verbal warning for two or more attendance violations within 30 days. A written warning will be given for two or more attendance violations occurring within the 30 days following the verbal warning. A worker is subject to a disciplinary suspension or termination if he or she is absent or tardy on two or more occasions within the 30 days following the written warning. The employee received a copy of the employer's attendance policy which was documented by the employer.

The employee was tardy for her scheduled shifts 11 times between May 5 and August 28, 2006. She failed to provide the employer with notice of her tardiness on all but two of the occasions. The employee was tardy because she was "running late." The employee was absent with notice to the employer six times between March 28 and August 17, 2006, due to illness. On September 22, the employee left a note for the scheduler stating that she would not be at work on September 23 because she was frustrated with working on an understaffed unit. The director of nurses left a voice mail message for the employee instructing her that she must report for her scheduled shift on September 23, 2006. The employee failed to call the employer or show up for her scheduled shift.

On June 22 and September 25, the employee received written warnings for her repeated tardiness and absenteeism. The employee was aware that her job was in jeopardy but was tardy again on September 27 for an unknown reason without providing notice to the employer. The director of nurses was made aware of the employee's continued attendance violations on October 2, 2006. On October 3, the director of nurses left a voice mail message for the employee informing her that she could not return to work until they met. The employee received the message on October 3, but did not contact the director of nurses until October 9 because she feared she would be discharged. A meeting was then scheduled for October 10, 2006 (week 41), during which the employee was discharged for excessive absenteeism.

The employer and the employee contended that the employee was discharged by the employer on October 10, 2006. The persuasive evidence demonstrates that the employer was the moving party in the separation. The employee intended to continue her employment when the director of nurses removed her from the work schedule. The employee's failure to immediately contact the director of nurses to schedule a meeting was not because she did not want to remain employed. In fact, the employee's delay in contacting the director of nurses was because she feared termination. The employee's fears were confirmed when she was discharged on October 10, 2006. As such, the employee did not voluntarily terminate her employment but was discharged by the employer.

Having found that the employee was discharged by the employer, the next issue to be resolved is whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer under Wis. Stat. § 108.04(5g).

Wis. Stat. § 108.04(5g) provides that individuals who are absent on five or more scheduled workdays without adequate notice to the employer or are tardy on six or more scheduled workdays without adequate notice to the employer will be ineligible to receive benefits until six weeks have elapsed since the discharge and the employee earns wages equal to at least six times his or her weekly benefit rate if the employer has a written policy that meets the statutory requirements. The policy must define what constitutes a single occurrence of tardiness or absenteeism, describe the process for providing adequate notice of tardiness or absence, and notify the employee that a failure to provide adequate notice of an absence or tardiness may lead to discharge. The employer must provide a copy of the written policy to the employee and have written documentation that the employee received it. The policy must be applied uniformly to all employees.

The employer's policy indicates that "conduct which will subject employees to immediate disciplinary action up to and including dismissal" included "Missing work without notifying the department manager, failing to call in or leaving without your supervisors(sic) approval." Further excessive absenteeism and excessive tardiness were violations. The employer might administer discipline, including verbal warning, written warning, suspension and/or probation and finally dismissal. The employee did sign paperwork indicating she received this policy. However, the employee complained that the policy was not fairly applied and there is no evidence to conclude that it was uniformly applied. The policy allows for complete employer discretion in the administration of discipline. The employer indicated at page 4 of the synopsis that the failure of a worker to "abide by any of the 19 points could result in disciplinary action, including suspension or termination." Exhibit 3 is a separate attendance policy for the nursing unit. The policy provides a method for giving notice of an absence. However, even that states that "Failure to notify the supervisor/scheduler in the time frame listed above may result in the absence being counted as a NCNS. Tardiness was defined as being more than seven minutes late. There were guidelines that provided that two or more violations within 30 days would result in a verbal warning, and two or more absences or tardies within 30 days of a verbal warning would result in a written warning with or without suspension. Finally two or more occurrences in 30 days after the written warning "may" result in suspension or termination." Thus, it was not established that the employer's policy was uniformly applied to all workers.

On the other hand, the employee was tardy 11 times from May 5 and August 28. The employee did not have valid reasons for being tardy. The employee had been warned about her attendance and was or should have been aware that her job was in jeopardy as a result of her attendance. The employee's actions on September 22 were insubordinate and the employee purposely placed the employer in a very difficult position. The employee was tardy on September 27 and did not demonstrate that she had a valid reason for being tardy. On October 3, the employee was instructed that the director of nurses would like to speak with her and was informed that she would not be allowed to return to work until they met. The employee did not contact the employer until October 9. The employee's attendance record, and her willful refusal to report to work was scheduled on September 22, 2006, demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 41 of 2006, the employee did not voluntarily terminate her employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 41 of 2006, the employee was not discharged for a failure to notify the employer of the employee's excessive absenteeism and/or tardiness, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that in week 41 of 2006, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2006 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed March 23, 2007
derenke . urr : 145 : 1  MC 606  MC 605.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission modified the ALJ's decision to reflect its determination that Wis. Stat. § 108.04(5g) did not apply to the employee's case and that the employee was discharged for misconduct connected with her work.


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uploaded 2007/03/26