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

NICOLE E GRAHAM, Employee

OAK PARK PROPERTIES OF MADISON LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001954MD


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 almost one year as a nurse for the employer, a long-term care and rehabilitation facility. Her last day of work was April 8, 2007 (week 15). The employer discharged the employee on April 11, 2007 (week 15).

The issues to be decided are whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer under Wis. Stat. § 108.04(5g) and/or whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment under Wis. Stat. § 108.04(5).

The employer has a written attendance policy which provides that workers must notify their supervisors at least two hours prior to their scheduled shifts if they will be absent or tardy. The policy defines "tardiness" as arriving more than six minutes after the scheduled start time for a shift and as leaving more than six minutes before the end of a scheduled shift. The policy states that workers may be discharged for excessive absences and tardiness "will be dealt with per the direct supervisor's discretion." The employee signed a written document acknowledging receipt of the policy on May 23, 2006.

The employee was tardy without notice to the employer on an unknown number of occasions, between December 30, 2006, and March 18, 2007. The employee's supervisor at the time was lax on enforcing the employer's attendance policy. Also during that time, the supervisor allowed the employee to appear for work up to two hours late during the week because of her school attendance. The employee did not work a set schedule and worked overtime including working unplanned shifts resulting in her arrival after the scheduled starting time for that shift.

On April 2, 2007, the employee received a written warning for allegedly incurring 24 occurrences of tardiness, and three unexcused absences in the last three months. At that time, the employee informed the employer of the arrangement she had with her former supervisor that allowed her to appear for work late on school nights. The warning also noted that the employee left work early without permission on March 18. The employee was notified that she had to be at work when scheduled and arrive on time for her scheduled shifts and work her entire shift. The employee was warned that further violations of the attendance policy would result in discharge.

On April 7, 2007, the employee brought her young children to work with her for 30 minutes. Other workers had on occasion brought their children to work. Later that day, the employee allegedly failed to give a resident a prescribed medication. The employee denied the allegation. Upon discovering that the resident had not received the medication, she contacted the nurse from the prior shift to investigate. The employee was informed that the nurse had forgotten to give the resident the medication. The employee immediately contacted the doctor and proceeded to administer the medication to the resident based upon the doctor's orders. That same day, the employee left her shift 37 minutes early without permission due to illness. On April 8, the employee left her shift 21 minutes early without permission because her replacement had arrived and she did not have any additional work to perform. On April 11, the employee was discharged for bringing her children to work with her, leaving work early on April 7 and 8, 2007, and allegedly failing to give a resident medication as required.

The initial issue to be decided is whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer under Wis. Stat. § 108.04(5g).

The employer discharged the employee for her tardiness and for leaving work prior to the end of her shift, and not for her failure to give notice of her tardiness. The employer's policy also fails to meet other requirements of Wis. Stat. § 108.04(5g). Accordingly, the employee was not discharged for excessive tardiness as defined in Wis. Stat. § 108.04(5g).

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 employer did not establish that the employee failed to administer medication to a resident. The record also indicates that that other workers would bring their children to the employer's facility. More significantly, the employer did not establish the employee's tardiness record prior to April 2, 2007. The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ indicated that she found the employee to be quite forthright and quite honest. The commission agrees with the ALJ's credibility assessment. The commission has accepted the employee's testimony that she was given up to two hours to appear for work when attending school and that late punches may reflect dates/times the employee was not originally scheduled to work. The employer's records establish that the employee worked overtime in a number of pay periods. The employee left work early on April 7 because she was ill and on August 8, because she had completed her duties. While the employee had been warned on April 2, 2007, for her tardiness and leaving early, it was the only warning the employee had received in 2007. The employer conceded that the employee's supervisor had been lax in enforcing the employer's policy.

The commission therefore finds that in week 15 of 2007, the employer discharged the employee but not for misconduct connected with her work 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 15 of 2007, if she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 17, 2007
grahani . urr : 132 : 6 : MC 678

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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