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

MITCHELL J EVERETT, Employee

FEDERAL FOAM TECHNOLOGIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201117NR


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2007, if otherwise qualified.

Dated and mailed October 9, 2007
everemi . usd : 135 : 8   MC 605.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. The statute's subsection language, "unless sub. (5g) applies" requires the commission to address the applicability of Wis. Stat. § 108.04(5g) in an attendance case before addressing whether the discharge was for misconduct under Wis. Stat. § 108.04(5). See Dykstra v. Sulzer Machine & Mfg. Inc., UI Dec. Hearing No. 06201124HR (LIRC, October 6, 2006); Woodrum v. Woodman's Food Mart Inc., UI Dec. Hearing No. 06002681JV (LIRC, November 17, 2006). In this case, the employee was not discharged for a failure to give adequate notice of absences or tardies but for the absences and tardies themselves. Thus, the employee's discharge does not fall within the purview of Wis. Stat. § 108.04(5g).

The employer asserts that the employee's termination for his attendance violations constitutes misconduct within the meaning of the law. The commission disagrees. Mere proof of an absence, however frequent, does not create a presumption of misconduct. This is particularly true where the employer has a no-fault attendance policy by which all tardies and absences are treated the same, regardless of the reason. Birch v . Nedland Industries Inc,. UI Dec. Hearing No. 07200397RL (LIRC, June 1, 2007). The employee was not told which absences were considered excused and which were considered unexcused. Although the employee had received warnings at various times during his employment for his attendance, his last warning was issued following a three-day period of absence due to illness. The majority of the employee's absences were for valid reasons including family medical reasons and often with notice. Under these circumstances, the commission is unwilling to conclude that the employee's overall attendance constituted misconduct within the meaning of the law.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/10/22