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

TERRY D FISK, Employee

XCEL ENERGY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201285EC


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 more than four years as a call handler for the employer, a call center. His last day of work was June 1, 2007 (week 22).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employer had an attendance policy that assessed employees either a half or a full occurrence for early departures, late arrivals or absences. The policy also indicates that an employee will receive a final warning for accumulating eight occurrences within a rolling twelve month period. The employee was aware of the attendance policy. As of March 2, 2007, the employee had accumulated eight occurrences within the preceding 12 months for medical reasons. Pursuant to the attendance policy, on March 2, 2007, the employer gave the employee a final warning that he would be discharged if he had another full attendance occurrence within the next 12-month period.

On June 1, 2007, the employee left work early without notice to the employer because he did not accurately read or remember his schedule for that day. As a result, the employer warned the employee that he could not be absent, tardy, or leave early again until March of 2008.

The employee requested approval to have days off on June 4, 5, 6, and 7 of 2007. The employer responded to his request in writing, telling the employee that he could not have off on June 4, but that he could have off on June 5, 6 and 7. However, he did not accurately read the employer's written response to his request for days off, and he erroneously believed that he had received approval to have off on June 4, 2007. On June 4, 2007, the employee was absent without notice to the employer. As a result, the employer discharged the employee on June 5, 2007 (week 23).

The initial determination held that the employee quit. However, both parties contend that the employee was discharged. The parties' contention must be sustained. The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept. 94 Wis. 2d 106, 119 (1980); Tate v. Industrial Comm. 23 Wis. 2d 1, 6 (1963). In this case, the employee's actions did not demonstrate an intent to quit. The employer notified the employee that he was discharged for his attendance. Therefore, the employee did not quit.  He was discharged on June 5, 2007 (week 23).

Having determined that the employee was discharged, it must also be determined whether he was discharged for misconduct connected with his employment. 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."

In this case, the employee was discharged because of his attendance. The commission notes that all but his final two absences were for valid medical reasons. The employee's two final absences were not intentional but were the result of negligence. The employee misread his schedule. The employee's final absence was because he misread the employer's response to his request for time off. The employee asked for four days off and assumed that they had been granted. While the employee should have taken more care to ensure that he understood the employer's response, the employee's negligence did not evince such a willful and substantial disregard of the employer's interests to establish misconduct. Likewise, while the employer may have been frustrated with the employee's absences, they were due to the employee's inability to work because of his medical conditions, apart from the final two that were inadvertent. Therefore the employee's attendance record as a whole did not amount to misconduct connected with his work.

The commission therefore finds that in week 23 of 2007, the employee did not voluntarily terminate work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 23 of 2007, the employee was discharged by the employing unit, within the meaning of Wis. Stat. § 108.04(5), and that his discharge was not for misconduct connected with his work, within the meaning of that section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2007, if otherwise qualified.

Dated and mailed October 25, 2007
fiskte . urr : 145 : 8  MC 626  MC 605.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different assessment of witness credibility. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when it applied the law to the facts found by the ALJ.

 

cc: RSM Enterprises Xcel Energy - Eau Claire, WI


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