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

BETH A REDMANN, Employee

DEMPSEY WILLIAMSON KELLY & HERTEL LLP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401539OS


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits for weeks 23 and 24 of 2007 will be reduced by including in the computation of benefits payable for each week the amount of $615.30 as wages the employee would have earned had the employee performed all of the available work. Accordingly, the employee is ineligible for benefits in weeks 23 and 24 of 2007. She is eligible for full benefits as of week 25 of 2007, if otherwise qualified.

Dated and mailed January 25, 2008
redmabe . usd : 145 : 1  MC 606  MC 665.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the ALJ erred in not considering anything occurring after April 26, 2007, when determining whether the employee's actions amounted to misconduct. The commission has consistently held that events that occurred after a worker was discharged do not amount to misconduct as the worker was not discharged for those incidents. In addition, the commission has determined that actions of a worker which were discovered after the worker was discharged cannot be considered for the purpose of determining whether the worker's discharge was for misconduct since they likewise did not play a role in the employer's decision to discharge the worker. The ALJ concluded that the employer had already made the decision, on April 26, 2007, to discharge the employee. Therefore, the ALJ's decision to consider only the events that occurred prior to April 26, since only they could have been part of the decision to discharge the employee, were consistent with the commission's longstanding practice.

The employer argues that the employee did not provide proper notice of her absences and did not establish that the employee had valid reasons for being tardy. The employee provided testimony about her absences, including her own medical problems, her granddaughter's medical problems and her involvement in a serious family matter. The employee also explained why she was tardy. The employee's absences were for generally valid reasons and while the employer may have been dissatisfied with her attendance, and may have made a reasonable business decision when it discharged a worker who was not able to meet its attendance standards, the employee's attendance infractions did not amount to misconduct connected with her work.

The employer argues that Wis. Stat. § 108.04(5g) applies in this case because the employee was tardy more than six times without notice, and that its attendance policy meets the requirements set forth in the statutes. However, in order for Wis. Stat. § 108.04(5g) to apply an employer must meet the strict requirements of the statute. Among other things the statute requires that an employer have a written policy that defines what constitutes a single occurrence of tardiness or absence and that the employer obtain written evidence that the employee received a copy of the attendance policy. In the present case this employer has failed to define what constitutes a single occurrence nor has the employer offered any evidence that would prove that the employee acknowledged receipt the policy in writing. In addition the statute requires that the policy be applied uniformly but there is no evidence in the record to support a finding that the employer applied its policy uniformly to workers. Instead, discipline and discharge seemed dependent upon the requirements of the individual partners.

The employer failed to establish that the employee continually engaged in criticizing her supervisor or the employer and that this resulted in a loss of morale at the workplace, or that the employee failed to make up work time spent on personal matters.



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