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

TAMIKHA R GIVHAN, Employee

CHRISTINA'S CHILDCARE & DEVELOPMENT CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603505MW


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, except that it makes the following modifications:

The date stated in the first sentence of the sixth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is changed from April 23 to April 20.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2007, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. Benefits used to reduce the forfeiture balance in the amount of $1122 and benefits paid to the employee in the amount of $264 will remain charged to the employer's account. The forfeiture reduction shall remain intact and no overpayment is created. The initial benefit computation (Form UCB-700) issued on April 26, 2007, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed November 21, 2007
givhata . umd : 115 : 1   BR 319.4

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


Misconduct issue

The employee worked four years as a lead teacher for the employer, a day care center.

Prior to April 20, 2007, the employee had been disciplined three times for major rule infractions:

Although the conduct which led to these disciplinary actions was not established in the record by competent evidence, the record does establish that these disciplinary actions were taken.

On April 20, 2007, the employee was scheduled to work the second shift, i.e., 3-11 p.m. At 11 pm, she was to be relieved by the third shift teacher. A parent who was scheduled to work third shift at her job dropped her two children off around 9 pm. Instead of waiting for the third shift teacher to relieve her at 11 pm, the employee, as she admits, left work at 10 pm, took the two children with her in the employer's van, and had the van driver drop her off at her home and then take the two children back to the day care center. In the meantime, the parent was unexpectedly sent home from her job and, when she arrived at the day care center; neither her children nor any teaching staff were present. The parent subsequently complained to the employer.

The employee engaged in misconduct. It was her responsibility to care for the two children at the day care center until she was relieved by the third shift teacher. Her actions in leaving work an hour before her scheduled shift was completed and unnecessarily removing the children from the center, without notice or permission, was an egregious neglect of her responsibilities to these children and their parent, and of her obligations to the employer.  
 

Employer fault

The department determination stated that the employer failed to provide correct and complete information to the investigator.

The employer gave notice to the department that different witnesses would be providing testimony in regard to the misconduct and concession of liability issues. The misconduct witness appeared at the start of the 9:00 a.m. hearing and gave testimony. The concession of liability witness (Bent) became concerned when he had not received a call from the ALJ by 9:58 a.m. and called the hearing office. While he was calling the hearing office, the ALJ was attempting to reach him. The ALJ's call was forwarded to Bent's voice mail, and the ALJ left a message. The ALJ then closed the hearing.

The employer argued to the commission that further hearing should be granted to permit the employer the opportunity to provide Bent's testimony. The commission agreed. The employer was diligent in providing notice to the department of its desire to have Bent testify, and it was not unreasonable for Bent to attempt to determine, after almost an hour of hearing had passed, why he had not yet been contacted.

As a result, by order dated October 18, 2007, the commission remanded this matter to the hearing office to permit the employer the opportunity to offer Bent's testimony on the issue of whether the employer failed to provide correct and complete information during the department investigation.

The remand hearing was held on November 5, 2007.

Both the employer's May 4 response to the request for information in the department's April 27 UCB-16 (remand exhibit no. 1), and its May 10 response to the adjudicator's May 4 request for additional information (remand exhibit no. 2), stated that the employee was discharged because she had untruthfully told certain potential parents that the center would not accept their children, i.e., she was unjustifiably turning away clients. The response to the UCB-16 stated that the employee was also discharged for missing a mandatory meeting.

However, it is clear from the record in this matter that the employee was discharged for removing children from the daycare center, so that she could leave work an hour prior to the end of her shift, without permission or notice to the children's parent or to management.

Neither this incident, nor the prior incidents for which the employee was warned/disciplined had anything to do with turning potential clients away or missing a mandatory meeting.

The testimony at the remand hearing focused on the employer's alleged failure to respond to a voice mail message left by the adjudicator on May 7. However, it is apparent that this was not the basis for the adjudicator's conclusion that the employer had failed to provide correct and complete information in view of her comment on the employer statement (remand exhibit no. 3) that "[t]he employer faxed the same information to me on 5/10/07."

Because the employer failed to correctly characterize the basis for the employee's discharge, the employer failed to provide correct and complete information to the adjudicator within the meaning of Wis. Stat. § 108.04(13).

The record does not establish that the employee was also at fault, and, as a result, no overpayment is created.

 

cc: Christina's Childcare & Development Center, Inc. (Milwaukee, Wisconsin)


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uploaded 2007/11/28