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

PATRICIA J SALLIS, Employee

AURORA HEALTH CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605608MW


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 ineligible for benefits beginning in week 33 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 21, 2007
sallipa . usd : 135 : 1  MC 630.09  MC 658

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The issue for commission review is whether the employee's discharge was for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). The employer asserts that the employee was discharged for negligent job performance and falsifying her activity log on August 8. In response to these allegations, the employee argues that she did not falsify her activity log but mistakenly entered the wrong times on it and that she performed her job duties during her shift to the best of her abilities despite her illness.

At the hearing the employee admitted that she left the hospice at 11:40 p.m. and did not re-enter the hospice until 4:57 a.m., over five hours later. After a worker at the hospice reported that the employee was missing from the hospice all morning, the employer investigated the matter and discovered that the employee had reported making interior rounds in the hospice at times when she had not physically been in the facility. The employee argues she had mistakenly reported making interior rounds between 12:00 a.m. and 2:00 a.m. because she had performed those rounds an hour earlier and she simply made a clerical error in reporting the time she actually made the rounds. The employee also contended she made her interior rounds sometime between 3:00 a.m. and 4:50 a.m.

After thorough review of the record and of all the parties' arguments, the commission concludes that the employee's contentions are without merit. The employee acknowledged at the hearing that she was not in the hospice building from 11:40 p.m. to 4:57 a.m. It is difficult for the commission to conclude that the employee with 24 years of experience as a security officer for the employer could believe that her job duties could be performed from the outside of the building, specifically while sitting in her car. As the ALJ noted, the focus of the employee's job responsibilities during her shift were inside the hospice. Therefore it can be inferred that the incorrect log entries made by the employee were done so to make it appear that she was in the building when in actuality she was outside the building for approximately five hours.

The employee also argues she performed her job duties from her car because she was ill. The employee however did not report her illness to the employer at any time during her shift and in fact did not mention the illness until the matter was being investigated. If the employee was this sick it was grossly negligent of her to have failed to report her illness at some point during her shift. For these reasons, the commission is satisfied that the record supports a finding of misconduct within the meaning of Wis. Stat. § 108.04(5).

Having addressed the substantive issue of this petition, the commission now turns to the employee's representative's conduct during this review process. In October of 2006 James Walcheske e-mailed the commission's office manager inquiring about procedures for obtaining a synopsis and information on filing a brief. During the ensuing e-mail correspondence the commission's office manager specifically asked Mr. Walcheske to clarify his position in regard to whether he represented the employee during the commission's review. Mr. Walcheske failed to do so until after the deadline for the employee's brief-in-chief expired on December 15, 2006. On December 19, 2006 Mr. Walcheske requested an extension on the brief deadline. At that point Mr. Walcheske informed the commission that he was representing the employee. The commission denied the request for an extension, in part because the employee had timely filed a petition that contained argument. The briefing schedule permitted the employee an opportunity to file a reply brief no later than January 12, 2007. On behalf of the employee, Mr. Walcheske filed a "brief of petitioner Patricia J. Sallis" on January 8, 2007. The commission agrees with the employer that this filing failed to comply with the deadline for submitting a timely brief-in-chief.

The commission recognizes administrative review in unemployment cases affords an expedient and less formal process but that does not mean that commission deadlines or procedures may be ignored or circumvented. Having noted this, the commission informs the parties and their representatives that all the arguments including Mr. Walcheske's late submission were considered during the commission's review process.

cc:
Attorney Steven A. Burk
James Walcheske



Appealed to Circuit Court.  Affirmed November 8, 2007.

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