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

KEVIN A GOLLA, Employee

HAWK TRAILER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401450AP


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 as a welder for about seven years for the employer, a horse trailer manufacturer. The employee acknowledged by his signature that he received a copy of the employer's no-fault attendance policy in 2003 and in 2006. Absences and tardiness were defined in the policy. The policy required that workers who were unable to work for any reason must call in prior to the start of his or her shift and give the reason for missing work. Failure to call in was considered an unexcused absence according to the policy.

The employee was late for work on the following dates:

December 4, 2006 - 48 minutes
December 7, 2006 - 1 hour and 25 minutes
January 10, 2007 - 2 hours and 31 minutes
February 16, 2007 - 9 minutes
February 28, 2007 - 20 minutes
March 19, 2007 - 2 hours and 5 minutes
March 30, 2007 - 40 minutes
April 6, 2007 - 34 minutes
May 9, 2007 - 2 hours and 36 minutes
May 16, 2007 - 4 minutes
May 22, 2007 - 39 minutes
May 24, 2007 - 1 hour and 11 minutes.

The employee provided notice of his tardiness only on the last two occasions, although such notice was given after his shift began. He was aware of the requirement to give notice of his tardiness but failed to do so on most of the other occasions because he lived near the employer and thought it was a waste of time to call in when he could use that time to travel to work. The vast majority of his tardiness incidents were due to his inability to wake up after having spent the night periodically checking his parents' conditions due to their extremely poor health. The employee also attributed his tardiness to his inability to fully function upon awakening due to his low blood glucose. On one occasion, the employee had to crawl to the refrigerator to obtain a high sugar content drink and then remain on the floor for about forty minutes until he felt able to get ready for work.

The employee received three progressive disciplinary steps from December 11, 2006 to April 9, 2007. The first two disciplinary actions mentioned nothing about his failure to give notice of his tardiness. The April 9, 2007 disciplinary suspension document stated, "Despite the warnings Mr. Golla has received over the past few months, he continually demonstrates a total disregard for the company policy regarding tardiness." The human resource manager discharged the employee on May 24, 2007 (week 21). The discharge document stated that the employee, "continually demonstrates a total disregard for Hawk Trailers posted and issued company policy for tardiness."

In reviewing a discharge based on absence or tardiness without adequate notice, the first consideration is whether Wis. Stat. § 108.04(5g) applies. Wis. Stat. § 108.04(5g) provides as follows:

DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (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 employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.

(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(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.

2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.

3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1 within the 12-month period preceding the date of the discharge.

4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.

The employee was not discharged for failing to give notice of his tardiness. The employee was discharged based on the fact that he was tardy. The employee was assessed points, that led to his termination, based on the number of times, and amount of time that he was tardy, and not on his failure to give notice.  (1)

The next issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer. 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 employer alerted the employee that his tardiness was not acceptable. The employee knew based on the warnings the employer issued and the policy that his tardiness was jeopardizing his continued employment. The commission concludes that the majority of the employee's tardiness was related to the care he was providing his parents. However, the employee's tardiness spanned six months. The employee needed to arrange his personal affairs to allow him to appear for work on time. The employee's failure to do so, after warning, and failure to provide notice that he would be tardy, evinced an intentional and substantial disregard for the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 21 of 2007, the employee was not discharged for his failure to notify the employer of tardiness, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that in 21 week of 2007 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 21 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 initial benefit computation (UCB-700) issued on May 29, 2007, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 October 31, 2007
gollake . urr : 132 : 1 : 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 her impressions of witness credibility and demeanor. The ALJ indicated that, except for the occasion set forth above, she did not believe that the employee's tardiness could be attributed to his diabetes. Rather, she believed the employee was tired due to caring for his parents. The commission agrees with the ALJ's assessment of the reason for the employee's tardiness. The ALJ's provisional finding was that the employee's failure to give notice constituted misconduct. The commission considers the fact of the tardiness to be of more concern to the employer, given the lack of specific reference in the employer's rules to required notice, or the procedure for providing notice, in the case of tardiness.

The employee argues that he should not have been discharged under the employer's policy because November 10, 2006, should not have counted because it occurred more than six months prior to his discharge. However, the ALJ omitted the employee's tardiness on December 7, 2006, which was appropriately considered under the employer's policy.



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Footnotes:

(1)( Back ) The commission further notes that the employer's policy discusses notice only in the context of being unable to work, and not in the context of being late for work. In addition, the policy itself gives the employer the discretion to allow a worker to make up for missed time, and applies only to workers who have completed 90 days of employment. 

 


uploaded 2007/11/05