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

OMAR M CANTRES, Employee

UNITED MAILING SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600715MW


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, if otherwise qualified.

Dated and mailed April 27, 2007
cantrom . usd : 178 : 1  MC 606

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee was discharged under Wis. Stat. § 108.04(5g), for failure to give notice of his absences. On several grounds, the policy does not fall under this section. The employer maintains that the policy was uniformly enforced; however, the employer's witness testified that the employee should have been discharged months earlier under its policy but after considering his personal circumstances, they made an exception. Therefore, this policy is not uniformly enforced. Neither is it as detailed as required by the statute. In the portion of the policy provided in the record, the notice required is not defined. The commission concludes that the provisions of Wis. Stat. § 108.04(5g), do not apply to this case and it should be resolved under the misconduct provision.

The employer made a reasonable business decision to discharge an employee who was not as reliable in his attendance as the employer required. However, the employer acknowledged at the hearing that the employee had personal circumstances which contributed to this problem. The employee did not act with an intention to harm the employer's interests. Therefore his discharge was not for misconduct.



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uploaded 2007/04/30