GLEN E KOEHLER, Employee

ABBOTSFORD EGG PRODUCTS, Employer

On March 1, 2007, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, which was held on April 3, 2007 before a department administrative law judge. On April 6, 2007, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked approximately six months as a warehouse worker for the employer, a food product manufacturer. The employer discharged him following a final instance of tardiness on February 6, 2007 (week 6), and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employee had eight absences (and eight instances of tardiness) during his employment which the employer pointed to as grounds for the employee's discharge. None of the absences is properly held against the employee, however. The employer considered December 3 and 4, 2006 absences to be unexcused. The unrebutted evidence was that those absences were due to a subpoena of the employee in a criminal court matter in which the employee was a witness. The employee was absent January 3, 2007, but that absence was pre-arranged and with the approval of the employer. The employee was absent due to illness on January 11. He was also absent January 31 and February 1, due to his and his daughter's illnesses. The employer considered the employee's February 3 and 4, 2007 absences unexcused, finally, but the record does not establish that the employee was scheduled to work those days.

The employer's goal, according to its shipping and receiving manager, was to try to "get everybody going" between 6:30 and 7:00 a.m. This is a somewhat flexible standard, such that the employee's having clocked in five minutes late on November 14, 2006 was a de minimus failure. The employee also is not culpable for February 5 and 6, 2007 instances of tardiness. On February 5, the employee was late because the battery in his spouse's car had gone dead and he needed to replace it so she could get to a doctor's appointment that day. The employee would have been late on February 6 (but for the discharge) because he overslept. While oversleeping is not generally a valid reason for tardiness, in this instance the employee's failure was due in part to a medical condition his spouse had.

What remains are five instances of tardiness for which no valid reasons are present, on November 6 and December 8, 2006, and on January 2, 8, and 24, 2007. The employer exercised no progressive discipline against the employee for his attendance failures (in the form of written warnings or suspensions). Nor did the employer inform the employee that, absent improvement in his attendance, his job was in jeopardy. The most the employer could point to, was comments to the employee that he needed to be at work on time. The commission has consistently held, except where the employee's conduct is egregious, that the employee must have notice from the employer that his or her conduct is placing the employee's job in jeopardy. See Tolliver v. Wendy's Old Fashioned Hamburgers, UI Dec. No. 05602052RC (LIRC June 15, 2005). The instances of tardiness properly held against the employee are not so egregious as to have relieved the employer of its responsibility to have given the employee express notice that his job was in jeopardy absent improvement, and the employer expressly conceded that it had not given the employee such notice.

The commission therefore finds that, in week 6 of 2007, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits beginning in week 6 of 2007, if he is otherwise qualified.

Dated and mailed August 8, 2007
koehlgl . urr : 105 : 8  MC 605.01  MC 678

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal was not based upon a differing view of credibility of witnesses, as the commission has accepted the facts as found by the administrative law judge. Indeed, the relevant facts essentially are undisputed. Rather, the commission's reversal is based upon the legal principles enunciated in its decision.

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uploaded 2007/08/13