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

DAVID THOMPSON, Employee

HELWIG CARBON PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601418MW


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 four years and four months as a maintenance technician for the employer, a manufacturing business.

The employer uses a "no fault" attendance system on a rolling 12-month calendar. All absences which are not covered under the Family Medical Leave Act (FMLA) or which are unscheduled and which are not covered by paid time off will result in accrual of attendance points. Workers receive discipline at certain point levels with discharge occurring upon the accumulation of nine points.

The employee worked on January 2, 2007 (week 1) and then was absent. The employer provided him documentation for his doctor to complete certifying that certain absences were covered by FMLA. The employer set a 15-day deadline for return of the documentation. Prior to the expiration of the 15 days, the employer terminated the employee on Monday, January 29, 2007 (week 5) for accumulating 11.5 points under the attendance system. The employer then received the completed FMLA certification form on Thursday, February 1, 2007 (week 5), which was within the 15 day deadline. Based upon the form, certain absences were covered by FMLA. With those absences excluded from the point total, the employee was reinstated. The employee returned to work on February 7, 2007 (week 6); he has subsequently ceased performing services for the employer.

Wisconsin Statute § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment; thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer petitioned the appeal tribunal decision contending that the employee's discharge in week 5 of 2007 was for misconduct. This contention cannot be sustained. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). The employer's attendance policy set the standard in terms of attendance expectations, with FMLA absences excluded from the point total. While the employee "originally" had excessive absence points, within the period set by the employer, the employee submitted the necessary medical paperwork to establish that certain absences were covered by FMLA and his point total no longer violated the employer's standards in terms of discharge. Thus, as of week 5, the employee's actions did not evince a willful or intentional disregard of the employer's interest and his discharge was not for misconduct connected with his employment.

The commission therefore finds that the employee's discharge in week 5 of 2007 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 affirmed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2007, if otherwise qualified. The administrative law judge properly remanded for investigation the issue of a subsequent separation of employment. Since department records reflect that the employee has not sought benefit payment after initiating a claim for benefits in week 5, the matter may not have been adjudicated yet.

Dated and mailed August 3, 2007
thompda . urr : 150 : 1 MC 605.01  MC 605.093

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM DECISION

The employer's human resource manager petitioned the appeal tribunal decision objecting to the decision on four primary grounds.

The first objection that "[i]t is incorrect that evidence was not provided at the Hearing" is a misstatement of the appeal tribunal decision. In particular, the ALJ did not say that evidence was not presented, instead he found that the evidence presented did not establish misconduct by attendance violations. The commission affirms this ultimate finding but has written its own decision to explain why the evidence presented by the employer fails to establish a discharge for misconduct as of week 5 of 2007.

In its second objection, the petitioner mischaracterized the ALJ's explanation of the nonappearance procedures. Specifically, the petitioner contended that the ALJ stated,

that if Mr. Thompson [the employee] had an excuse like he was stuck in traffic that the hearing would be rescheduled and we would have to come down to the Hearing Office and present evidence all over again.

The digital record of the hearing reflects that the administrative law judge explained that a party who does not appear has the right to submit a letter explaining the failure to appear and requesting a new hearing on the merits. He correctly stated, in relevant part, with emphasis, and pursuant to Wis. Stat. § 108.09(4)(e)3,

If a party is not at a hearing and it's a reason that they could never control; illness that they can prove, car accident, something like that, flat tire, something that you can't anticipate, the matter might be rescheduled. If it were, you'd have to give your testimony again, so, all this stuff will be in the file but . . . you would have to give testimony again only if he establishes under oath that his failure was with good cause.

The ALJ further explained that he typically schedules the failure to appear hearing first by telephone. In such an instance, the employer would get a hearing notice explaining that the only issue would be the failure to appear and, if the employer wished to participate in the hearing, it should contact the hearing office. Under this circumstance and as explained by the ALJ, the employer would only be expected to attend a new hearing on the merits if the employee established by competent evidence that his failure to appear was for good cause.

The petitioner then objected to the ALJ's refusal to address the concession of liability issue. Again, the commission must agree with the ALJ's actions in this regard. Even though testimony regarding the employer's failure to provide information during the fact-finding investigation was taken, since the decision allowed unemployment benefits to the employee, no overpayment exists to trigger application of Wis. Stat. § 108.04(13)(c) and (g).

Finally, the employer argues that the employee should not be eligible for unemployment insurance benefits because he only worked two days from January 1 through his "final termination in March 27th (sic) 2007." In this matter, week 5 of 2007 is the week of issue. For the reasons set forth in the decision, the employee is not denied benefits as of week 5 of 2007. Yet, it appears that a subsequent separation took place. Neither the ALJ nor the commission has jurisdiction of that matter and it was remanded for investigation. Departmental records further reflect that after he initiated a claim, the employee has not actually sought payment of benefits. If this occurs for a week after the subsequent separation, the employee's subsequent eligibility will be investigated.


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uploaded 2007/08/06