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

JOAN F MC CONNELL, Employee

RIPON PRINTERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400455AP


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. On May 30, 2007, the commission remanded this matter for further hearing. Further hearing was held on July 5, 2007.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and at the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about 20 years, most recently as a pre-press plate maker for the employer, a commercial printer. Her last day of work was on January 18, 2007 (week 3).

Prior to October 12, 2006, the employee was late to work on numerous occasions. On October 12, 2006, the employee was given her annual evaluation. She was warned that her tardiness was unacceptable. She was told that her goal for the next 12 months was that she be tardy to work on four or less occasions. She was warned that if she exceeded the four tardies that she would be disciplined.

On October 16, 2006, the employee was over one hour late reporting to work. On October 24, October 31 and November 1, she was late three minutes, one minute and six minutes, respectively. On November 3, she was almost two hours late reporting to work. She was also 26 minutes late to work on November 6. Therefore, on November 7, she was given a written warning.

Thereafter, the employee was late two minutes on November 16 and eight minutes on November 22. Accordingly, on November 27, she was given a one-day suspension.

The employee was on a two-week leave of absence and returned to work on January 8, 2007. On January 16, she was one minute late to work. On January 18, she was discharged for her continued tardiness.

The employee had been treating for a medical condition. The employee was taking various medications. The employee attributed her oversleeping to changes in her medication. The employee took steps to awake on time by going to bed earlier and taking her medication earlier. The employee would also have someone call her, but she did not always hear the phone. The employee's doctor provided a certified medical opinion that the employee's diagnosis and/or medication would cause the employee to be late to work. In addition, the employee's doctor indicated that as of week 3 of 2007, the employee could not perform her work for the employer and was not able to work in general.

The initial issue is whether the employee was discharged for failing to notify the employer of tardiness that was excessive.

Wisconsin Statute § 108.04(5g) imposes a disqualification from benefit eligibility for an employee who is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, if the employer satisfies the requirements set forth in paragraph (d) of that subsection. For that subsection to apply, the employee must have been absent without notice on 5 occasions or more in the 12-month period preceding the date of discharge, or tardy without notice on 6 occasions or more in the 12-month period preceding the date of discharge. The employer did not assert that the employee's discharge was for failing to provide notice of her tardiness. Wis. Stat. § 108.04(5g), requires an employer to have a written policy on notification of tardiness. The employer does not have such a written policy.

The next issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 commission finds that the employee's tardiness was not a willful or intentional disregard of the employer's interests. The employee's medical condition and/or medication caused her to oversleep. The employee took steps to overcome the effects of the same. The employer made a valid business decision to discharge the employee. However, the evidence did not establish that the employee was discharged for misconduct connected with her work.

The final issue to be decided is whether the employee was able to work in her labor market as of the time she initiated her benefit claim in week 4 of 2007.

Wisconsin Statute § 108.04(2)(a)1. provides that an employee is eligible for benefits for any given week for which she earns no wages only if she is able to work and available for work during that week. Wis. Admin. Code § DWD 128.01(2) provides that a claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

(b) The claimant's physical or psychological condition or personal circumstances over which the claimant has no control limit the claimant to less than 15 percent of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

The employee's doctor has offered a certified opinion that as of week 3 of 2007, the employee could not work. The employee agreed with that opinion. The employee is therefore not eligible for benefits until she demonstrates to the department that she is able to work.

The commission therefore finds that in week 3 of 2007, the employee was not discharged for failing notify the employer of tardiness or absenteeism that was excessive, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that in week 3 of 2007, the employer discharged the employee but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that as of week 3 of 2007, the employee was not able to work within the meaning of Wis. Stat. § 108.04(2)(a)1. and Wis. Admin. Code ch. 128.

DECISION

The ALJ's conclusion that the employee was discharged for misconduct is reversed. The ALJ's conclusion that the employee is ineligible for benefits as of week 3 of 2007 is affirmed.

Dated and mailed July 20, 2007
mcconjo . urr : 132 : 2 :  MC 678  AA 105

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility or demeanor. The ALJ found the employee was discharged for misconduct reasoning that the employee failed to provide medical evidence to support her argument that her medication caused her to oversleep. The employee provided such medical evidence at the remand hearing. The commission's reversal is based on evidence not available to the ALJ when the ALJ made her decision.

The employee indicated at the hearing that she was currently employed. The commission cannot determine on this record when the employee was again able to work. The employee should contact the department and provide information regarding her ability to work after week 3 of 2007.


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uploaded 2007/07/24