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

CHAD L WALTER, Employee

WHOLE FOODS MARKET GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602224MW


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 approximately six months as a cook for the employer, a grocery retail store. His last day of work and date of discharge was March 7, 2007 (week 10).

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) 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 employee received the employer's attendance policy when he was hired on August 29, 2006. The employee was tardy without notice on December 16, and December 31, 2006. On January 16, 2007, the employee was 20 minutes late returning from lunch. The employee could not recall why he was late. On January 28, 2007, the employee was 59 minutes late for work for unknown reasons. On February 9, 2007, the employee was 11 minutes late for work. The employee could not recall why he was late. On February 24, 2007, the employee was 55 minutes late because his car was stuck in the snow. He received a counseling in December of 2006, a written warning on January 31, 2007, and a final written warning on February 25, 2007, all regarding tardiness. On the last occasion, the employer informed the employee that if he was tardy before April 28 he would be discharged.

On March 5, 2007, the employee was 61 minutes late for work for "personal" reasons. The employer discharged him on March 7, 2007 (week 10) for repeated tardiness.

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 was discharged for failing to provide notice of his tardiness. In addition, the record does not establish that the employee was tardy on at least 6 occasions without notice.

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 employee failed to appear for work as scheduled, and at times without notice to the employer. The employer warned the employee that his tardiness was not acceptable. The evidence does not establish that the employee was tardy for generally valid reasons. The employee was warned that his tardiness was unacceptable. The employee's ongoing tardiness, after warning, demonstrated an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 10 of 2007, the employer discharged the employee from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,611.00 for weeks 10 and 11 of 2007, and weeks 16 through 32 of 2007, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2007, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,611.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 23, 2007
waltech . urr : 132 : 8 :   MC 606  MC 678

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ could not recall anything in particular about the parties.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2007/08/27