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

TERRANCE M VANCE, Employee

UNITED FORMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000172MD


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 the employer, a concrete foundation business, as a wall pourer off and on for eight years. His last day of work was December 1, 2006 (week 48).

The employer's handbook contains a section addressing absence and tardiness, which states, as follows:

"If an employee is unable to report for work at the designated time and place, he or she must call and notify the foreman. Unexcused absences and tardiness will not be tolerated. Repeated absences and tardiness will be dealt with accordingly. The progression of discipline for absences and tardiness will be verbal warning, written warnings and possible temporary suspension. If the problem persists, termination will result."

(Ex. 4, p. 5)(emphasis in original).

On October 16, 2006, the employee reported for work ten minutes late because he stopped to get gas on his way.

On October 27, 2006, the employee left work early, with the employer's approval, in order to attend a doctor's appointment.

On November 15, 2006 the employee was fifteen minutes late because he was giving a ride to a co-worker who was not ready to leave when the employee came to pick him up.

On November 27, 2006, the employee was late because he went to the wrong job site. He promptly notified the employer when he realized his mistake.

On November 29, 2006, the employee telephoned the employer prior to his shift to report that he would be tardy. He arrived at work fifteen minutes late.

On November 30, 2006, the employee did not report for work or call in. The employer attempted unsuccessfully to reach the employee by telephone, after which it drove to the employee's house and found he had overslept. The employer warned the employee that this was the last time it was going to drive to his house and wake him up. The employee rushed to get ready and worked a half day.

On December 4, 2006, the employee was absent without notice. The employer notified him that it could no longer tolerate his absences and that he was discharged.

The first issue to resolve is whether the employee was discharged for failure to notify the employer of absenteeism or tardiness, within the meaning of Wis. Stat. § 108.04(5g).

The above-cited provision clearly does not apply in this case, since it was not established that the employee was tardy on six or more scheduled workdays or absent on five or more scheduled workdays in a 12-month period without adequate notice to the employer.

Having concluded that Wis. Stat. § 108.04(5g) does not apply, the issue to be decided is whether the employee's discharge was for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employee was discharged for poor attendance. While the employee was late for work on several occasions, the employer does not contend that he failed to provide proper notice of tardiness, and there were only two instances (October 16 and November 29) in which he lacked a valid reason for being late. In addition, the employee had two no-call-no-shows without a valid reason, although in the first instance he did ultimately report for work after being awakened by the employer. The commission concludes that the employee's attendance record, while not impressive, was not so egregious as to warrant a finding of misconduct. Further, the employer's handbook contemplates progressive discipline prior to discharge, but the employee was never disciplined or given any warning that his job was in jeopardy should his attendance fail to improve.

The commission, therefore, finds that in week 48 of 2006, the employee was discharged, but not for failure to notify the employer of absenteeism or tardiness, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that the employee's discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2006, provided he is otherwise qualified.

Dated and mailed May 4, 2007
vancete . urr : 164 : 1 MC 606  MC 605

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: Although the commission conferred with the administrative law judge about witness credibility and demeanor, its reversal does not rely upon a differing assessment of witness credibility. Where the commission has found facts which differ from those in the appeal tribunal decision, it has done so for reasons unrelated to witness credibility. The commission finds no support in the record for the appeal tribunal's finding that the employee was late on December 1, or for its finding that the employee was told prior to his last absence that he would be discharged if he did not report to work on time.

 

cc: United Form, Inc. (Madison, Wisconsin)


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