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

DAVID R ERICKSON, Employee

BERGQUIST CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201689EC


On September 12, 2006, an administrative law judge for the Department of Workforce Development (department) issued an appeal tribunal decision in this matter finding that the employer discharged the employee for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The employee petitioned and on November 10, 2006, the commission issued a decision reversing the appeal tribunal decision and finding that the discharge had not been for misconduct. The department appealed the commission's decision to Dane County Circuit Court, and on September 4, 2007, the court issued a decision and order setting aside the commission's decision and ordering reinstatement of the appeal tribunal decision. The commission subsequently requested reconsideration of the order reinstating the appeal tribunal decision, and on November 20, 2007, the court issued a decision and order modifying its original order. The modification remanded the matter to the commission for reconsideration of the misconduct issue, utilizing the court-delineated standard for commission review.

Based on the applicable law, records and evidence in this case the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked for just over four months as a third shift machine operator for the employer, a manufacturer. His last day of work was July 4, 2006, and he was discharged on July 9, 2006 (week 28).

At issue is whether the employer discharged the employee for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The employer has a work rule that provides that two consecutive days of absence without proper notice may result in immediate dismissal. Other employer work rules include that six attendance occurrences within a 12-month period may result in termination, or that in extreme cases fewer than six occurrences can result in discharge.

The employee was absent due to illness on April 16, 2006 and May 15, 2006. He was absent without notice due to car trouble on May 25, 2006. He was absent without notice on June 13, 2006, July 5, 2006, and July 6, 2006. He was discharged on July 9, 2006, as a result of this attendance record.

The employee asserted that he missed work on July 5 and 6, 2006, because he believed the employer had heard that he had been looking for other employment closer to his new residence, and because: "I just didn't feel like driving an hour and forty-five minutes to work." Approximately one month after beginning his employment with the employer, the employee had moved from a residence located 12 miles from the employer to one located 87 miles from the employer. The employee never discussed with the employer his suspicion that there was an intention to replace him. He acknowledged that he was tired of his long commute to work, a commute that he himself had chosen. Rather than discussing these circumstances with the employer he simply chose not to report to work or give notice on three separate occasions within approximately a three-week period. His actions evinced a willful, intentional, and substantial disregard of the employer's interests and constituted misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).  (1)

The commission therefore finds that in week 28 of 2006, the employer discharged the employee for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid unemployment benefits totaling $6,257.00 ($305 per week for weeks 28 through 40 of 2006; $75 for week 41 of 2006; $163 for week 42 of 2006; $224 for week 47 of 2006; $305 per week for weeks 48 through 52 of 2006; and $305 for week 1 of 2007), for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that pursuant to Wis. Stat. § 108.22(8), he is required to repay the sum of $6,257.00 to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of departmental error.



DECISION

The decision of the appeal tribunal is reinstated and affirmed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 28 of 2006, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $6,257.00 to the Unemployment Reserve Fund.

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 December 21, 2007
erickda . upr : 185 : 8   MC 605.05

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay
the overpayment.

 

cc: Berquist Company - Prescott, WI



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Footnotes:

(1)( Back ) See Boynton Cab v. Neubeck, 237 Wis. 249, 258, 296 N.W.2d 636 (1941).

 


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