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


WILLIE E SANDERS, Employe

OLSTEN OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603086RC


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 August 4, 1998, the commission remanded this matter for the testimony of the employe's supervisor, who was unable to testify at the hearing which was held on May 19, 1998 because the employer did not receive the Hearing Notice in time to arrange for his testimony.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about two months, as an assembler at Johnson Wax, a client of the employer, which is a temporary help agency. His last day of work was on April 8, 1998 (week 15). The employe was discharged on April 14, 1998 (week 16).

The issue which must be decided is whether the employe's discharge was for misconduct connected with the employe's employment.

On March 4, 1998 the employe was absent from work without proper notice. The employe's supervisor discussed the situation with him on March 5. The employe stated that he did not have a telephone, and his supervisor explained that the employer's policy was that he must call prior to the start of his shift to give the employer notice of his absence. The supervisor explained that he would be given a written warning as a result of the March 4, 1998 incident, and that he would be discharged if he was absent without proper notice again. The employe was absent on March 25, and April 9 and 10, and was given verbal warnings. The employe told his supervisor he was absent as a result of illness. The employe was then absent on April 13, 1998 and did not call in until after his shift would have ended. The employe apologized to his supervisor for not calling in, said he did not feel well, and did not give any other explanation.

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 compensation 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 contended that the employe was discharged for misconduct resulting from his absences without notice on March 4 and April 13. The commission must agree. The employe was absent without notice on March 4, and was warned that if this occurred again he would be discharged. A little more than a month later, the employe was absent without notice again. The employe did not appear at either the original hearing or the remand hearing to explain the reasons for his absences, or for his failure to call in. He had informed the employer that his failure to call in on March 4, was because he did not have a telephone, which is not a valid reason for failing to call in. Under the circumstances, the employe's two absences without notice to the employer amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his employment.

The commission therefore finds that in week 16 of 1998 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 16 through 27 of 1998, amounting to a total of $1,488.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

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 employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 16 of 1998, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $1,488.00 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 employe 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: October 15, 1998
sandewi.urr : 145 : 1 MC 605.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who held the original hearing to discuss witness credibility and demeanor. The commission bases its decision on the evidence which was adduced at the remand hearing and was therefore not available to the ALJ. The employe did not appear at either the original or the remand hearing, so neither ALJ would have formed an opinion on the employe's credibility.


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