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

MARTIN J PAMONICUTT III, Employee

ALTERNATIVE ENTERTAINMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400870GB


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 9 months as a technician' satellite installer for the employer, a satellite systems installation business. He was discharged on March 6, 2007 (week 10).

The employer has a written attendance policy, which states, in pertinent part:

"You are required to notify your supervisor and/or Location Manager as soon as possible if you will be absent from work or late....

Failure to report for work as scheduled (without calling in) may result in a break in service and loss of accrued benefits, and/or disciplinary action, up to and including discharge."

The employee signed an acknowledgement that he received a copy of this attendance policy when he was hired.

The employee was a "no call, no show" absence on July 17, 2006. He received a written warning on the following day. He testified that his friends became involved in a conflict, and he tried to break up the fight. He was ultimately placed in jail until 3:00 p.m. on Monday, July 17.

The employee received a written warning and a two-day unpaid suspension on September 17, 2006, for two "no call, no show" absences. The employee testified that he was under a doctor's care for strep throat, and was unaware that he had to call each day to report his ongoing absences.

The employee was ill with meningitis, and again under a doctor's care, in October of 2006. He called to report his absence on October 23. On October 24, the employee left notice in an answering machine message rather than speaking directly to a manager, as he had been instructed. He gave proper notice of his absence on October 25. He was a "no call, no show" absence (without an answering machine message) on October 26. He gave proper notice of his absence on October 27. He was a "no call, no show" absence on October 28 and again on October 30. Although he had been warned about this type of absence in September, he claimed that he was still unaware he needed to call the employer every day if he could present a doctor's excuse covering his absences when he returned to work.

The employee received a written warning on January 17, 2007 for "no call, no show" absences on January 13 and 15. He did not call at all on January 13 and left an answering machine message on January 15. He testified that he was experiencing car trouble in this period. He was given a three-day unpaid suspension as discipline on this occasion.

The employer works on either a six-day or five-day workweek, depending on workload. The manager receives an e-mail each Monday, which instructs him to inform workers whether the following workweek will consist of 5 or 6 days. The manager posts the information on the Monday afternoon prior to the week in question next to the time clock where workers punch in, and next to the exit door. The employee typically had Sundays off. In the event the employer was working a five-day workweek, he usually had Monday off as well.

The manager acknowledged that, in January and February of 2007, the workload was light, and "there were more times when we were on a five-day workweek." On Monday, February 26, the manager posted a notice that the following week would be a six-day workweek. He made an announcement reminding technicians of the six-day workweek at the regularly scheduled technician's meeting on Friday, March 2, 2007. The employee did not attend this meeting. The employee did not report for work, or call to report his absence, on Monday, March 5, 2007. When he reported to work on March 6, the manager informed him that he was being discharged for repeated no call, no show absences and poor attendance. He never again performed work for this employer.

At the hearing, the employee testified that he had missed the technician's meeting on Friday, March 2 because of bad weather. He had been one hour late reporting to work that day. He did not see the posted notice about which days would be worked in the following week.

The first issue is whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with his or her employment. However, the subsection language, "unless sub. (5g) applies" requires a determination whether Wis. Stat. § 108.04(5g) applies before the general misconduct analysis under Wis. Stat. § 108.04(5). See Dykstra v. Sulzer Machine Mfg. Inc., UI Dec. Haring No. 06201124RH (LIRC October 6, 2006).

Wis. Stat. § 108.04(5)(5g)(a) - (d) is applicable to discharge from employment that occur on or after April 2, 2006, and provides in part as follows:

(a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05(1) in [covered employment]. . .

(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:

a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge."

Finally, the statute requires that the employer apply its written policy uniformly to all employees.

The ALJ found that the employee was discharged under Wis. Stat. § 108.04(5g). However, the employer's policy falls short of the requirements of that section in two respects. It does not define 'notice.' It states that employees should call as soon as possible but does not define what constitutes adequate notice. The employer insists that in-person notice was required, but the written policy does not specify that notice must be in-person. In addition, the policy does not specify the consequences for failure to give adequate notice. It is completely discretionary. The employer confirmed this at the hearing and testified that it did not discharge the employee earlier because it was aware that the employee had phone problems which made notice difficult to provide.

Since the written policy does not define notice and it is not applied uniformly, it does not satisfy the requirements of Wis. Stat. § 108.04(5g).

The remaining issue is whether the employee's discharge was for misconduct.

The employee received warnings that his attendance placed his job in jeopardy. However, absences for valid reasons and with notice to the employer generally do not constitute misconduct. In this case, many of the employee's absences were due to illness. The employee usually gave notice by voicemail when he was absent, although the employer did not prefer that method. The employer acknowledged that he did so because he did not have regular access to a phone. On the final occasion, the employee did not realize that he was scheduled. The week's schedule was a change from the 5 day a week schedule that they had been working under for several months. While the employer made a reasonable business decision to discharge an employee it considered unreliable, the commission concludes that the employee tried to conform his conduct to the employer's requirements and did not intend to harm the employer's interests.

The commission therefore finds that in week 10 of 2007, the employee was not discharged for failing notify the employer of tardiness or absenteeism that was excessive, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that in week 10 of 2007, the employee was discharged but that the discharge was not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible to receive benefits beginning in week 10 of 2007, if otherwise qualified.

Dated and mailed August 31, 2007
pamonma . urr : 178 : 1 MC 606

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission does not reverse due to any differing assessment of witness credibility. Instead it reaches a different legal conclusion when applying the law to the facts as found by the ALJ.


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uploaded 2007/09/10