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

JAMIE L. HOAGLAN, Employee

CARRIAGE CLEANERS

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601633MW


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 beginning in week 48 of 2006, if otherwise qualified.

Dated and mailed June 22, 2007
hoaglja . usd : 150 : 1  MC 605.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee was discharged for misconduct connected with her employment. Specifically, the petitioner argued that the employee was suspended on November 20, 2006 for tardiness and warned that another incident of tardiness would result in discharge. The petitioner then argued that, thereafter, the employee was three minutes late on November 29, 2006. Yet, at the hearing, the employer's only witness, the drafter of the petition and the employer's administrative assistant, had no first-hand dealings with the employee. While she argued that she took part in the discharge decision, all of her testimony regarding the employee's explanations provided at time of call-in and, even the actual dates of absence and tardiness were not established through first-hand testimony or even business records. The employer did not offer any attendance sheets and, the employee, while unable to recall some dates, did offer Exhibit 4, an attendance schedule for three of the weeks at issue which she argued properly documented her actual start times and dates of absence.

In terms of the actual absences and incidents of tardiness, the employer's witness testified that the employee was tardy on October 31, November 1, November 2, November 4, November 6, November 8 through 10 and, November 14 through 16, 2006. However, as mentioned, the employee did not necessarily agree with all the incidents of tardiness and, based on her reference to Exhibit No. 4; it appears that the employee actually reported to work on time on October 31 and November 4. The Exhibit 4 time sheets do not substantiate the employer's claims of tardiness for November 9 and 10, 2006. Thus, "only" seven of the 11 alleged incidents of tardiness are reliable. The employee admitted being absent on two occasions with notice to the employer, once due to illness and once due to a court appointment.

Although the commission notes that this attendance record is far from ideal, it appears that no disciplinary action was taken by the employer prior to November 20, 2006; the employee denied ever receiving a verbal warning, the employer's first disciplinary step. The team leader who allegedly gave the employee the verbal warning did not appear as a witness and, although the suspension discipline references the verbal warning, the employee argued that the suspension paperwork had been altered and no verbal warning was referenced when she was suspended.

Next, with respect to the three-day suspension, the employee testified that at the time of the 3-day suspension, on November 20, 2006, the employee was told that the suspension was for her closing the store on November 15, 2006 instead of waiting for the next scheduled worker to arrive late. The employee admitted that she closed the store after only waiting 15 minutes past the other worker's scheduled start time but argued that she had a 3:30 appointment that day and had not agreed to stay until the replacement worker arrived. The individual who gave the employee the disciplinary suspension also did not appear at the hearing to dispute the employee's version of why the suspension was given or what exactly was written on the suspension paperwork. Finally, while the employee acknowledged the handbook's reference to a discharge step after a suspension step, it was not established that the employee was ever warned that her job was in jeopardy if she incurred another absence or incident of tardiness.

Contrary to the administrative assistant's petition claims, the administrative assistant took part in the decision to discharge the employee on November 28, 2006, with the final incident being the employee's alleged absence with notice that day. Again, at the hearing, the employer only had hearsay testimony regarding the reason alleged for the absence. When questioned, the employee initially argued that she had reported to work that day but was discharged upon her arrival and, it was at that time, she mentioned some personal issues involving her family and possible incarceration. The employee later conceded that she could not necessary dispute the employer's absence claims.

In Paplham v. Algoma Lumber Company, UI Dec. Hearing No. 00401318GB (LIRC July 13, 2000), the commission held that where employers frequently tolerate attendance violations, a worker's absences do not necessarily show a disregard of the employer's interests so as to establish misconduct. An important component of misconduct is a realization that a worker's behavior is contrary to the employer's standards of conduct. Williams v. Sunshine Cleaners Inc., UI Dec. Hearing No. 05600483MW (LIRC May 24, 2005). Thus, in other than the most egregious cases, before a finding of misconduct can be made, "the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct." Ness v. Deli-More, UI Dec. Hearing No. 02403062GB (LIRC April 10, 2003). See also, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 7820774EX (LIRC May 29, 1979).

In this case, while the employer may have made a valid business decision in discharging the employee, it failed to establish that the employee had actually been placed upon notice that her absences and tardiness jeopardized her employment; it, therefore, failed to meet its burden of proof to establish that the employee's discharge was for misconduct connected with the employment.



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