GEORGIA L FRECHETTE, Employee
MENOMINEE INDIAN TRIBE, Employer
On August 14, 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 her employment, within the meaning of Wis. Stat. § 108.04(5). The employee petitioned for commission review and on November 10, 2006, the commission issued a decision reversing the appeal tribunal decision and finding that the employee had been discharged but not for misconduct connected with her employment. 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, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, the commission makes the following:
At issue is whether the employer discharged the employee for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).
In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), the court stated in relevant part:
[T]he 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's attendance policy requires employees to report an absence within two hours of their scheduled starting time. Failure to properly report an absence may result in a written warning, then a disciplinary suspension, and then discharge. Absences due to illness are excused and no doctor's excuse is required. The employer has no guidelines with respect to when warnings for absences are given, and one supervisor might choose to give a warning before another supervisor would choose to do so.
On May 19, 2005, the employee received a written warning from Joyce Kotschi, the director of the employer's Aging Division. The warning was for the employee's failure to report her absence from work on May 18, 2005. The warning indicated that future infractions would result in a three-day suspension and then discharge.
On October 28, 2005, the employee telephoned the employer at approximately 7:00 a.m., (1) and indicated she would be to work at noon, but she failed to report to work at all that day. On November 3, 2005, Kotschi notified the employee in writing that she would be suspended for three days without pay on November 7 through 9, of 2005, due to the incident of October 28, 2005.
On June 20, 2006, the employee failed to report to work or give notice, and the employer decided to discharge her. Kotschi wrote a letter to the employee dated June 20, 2006, notifying her of the discharge effective that date. The employee's absence on June 20, 2006, was due to an ongoing personal problem for which she sought inpatient treatment on June 21, 2006.
The employee's attendance record constituted unsatisfactory conduct, but did not evince the wilful, intentional and substantial disregard of the employer's interests that constitutes misconduct for unemployment insurance purposes. Her three absences without notice were spread out over a period of 13 months, a substantial period of time for that number of absences. The employee's unrebutted testimony establishes that at least her final absence was due to a personal problem for which she sought inpatient treatment at the Medasakia Treatment Center on June 21, 2006. While the employer chose for its own reasons to discharge the employee by letter on June 20, 2006, the facts of the case do not support an inference of the wilful or intentional behavior that characterizes misconduct under the statute.
The commission therefore finds that in week 25 of 2006, the employer discharged the employee but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the appeal tribunal is reversed. Accordingly, the employee is eligible for unemployment benefits beginning in week 25 of 2006, provided she is otherwise qualified.
Dated and mailed January 4, 2008
frechge . urr : 185 : 9 MC 605.05
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: In conference with the administrative law judge, the commission learned that it had no disagreements with her regarding the employee's credibility. The administrative law judge's credibility determination focused on the employee's assertion that she had given notice of her absences, and both the administrative law judge and the commission rejected that testimony. The commission reversed the finding of misconduct because it inferred that the facts of the case did not establish the requisite intent for finding misconduct under the Boynton Cab standard.
cc:
Daniel J. LaRocque, Director, DWD/BOLA
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