JENNIFER M AINSLIE, Employee

SEEK CAREER/STAFFING INC, Employer

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 initial review, the commission remanded this matter for additional hearing on the merits. Upon consideration of the evidence offered at both the original and remand hearings, the commission now makes the following:

The employee worked for the employer, a staffing agency, for one month as an order processor. Her last day of work was September 26, 2007 (week 39).

The employer has an attendance policy which provides, in relevant part:

When you are going to be late, leaving [sic] early or can't report to the job, call at least one (1) hour before the assignment start time.

* * *

A "no call/no show" occurs when an employee does not report to his/her assignment at his/her scheduled time and has not contacted SEEK at least one (1) hour prior to the start time of his/her assignment to explain the reason for the absence. Failure to notify SEEK of your absence at least one (1) hour prior to your scheduled start time may result in discipline, up to and including termination. . . A second consecutive "no call/no show" may be considered a voluntary quit.

In the event of absences, you may be counseled by your SEEK consultant, and your absences may result in reminder/warning letters of probation. SEEK views five (5) absences or six (6) tardies in a 12-month period as excessive, and may lead to termination.

The employee's first day of work for the employer was August 29, 2007. Her shift began at 7:00 a.m. The employee overslept on August 31 and was approximately half an hour late for work. The employee called the employer at 6:22 a.m. on September 7 to report that she had a bad cold and would be absent that day. She called at 6:32 a.m. on September 13 to report that she would be absent due to her child's illness. On September 18, the employee called in at 6:46 a.m. to report an absence due to strep throat. That day the employer sent the employee a letter notifying her that her absence on September 13 was without proper notice, that she was on probation, and that she must submit documentation of her absence within two business days. The letter stated that further instances of absence or tardiness may result in the loss of her assignment or discharge.

The employee was absent due to illness on September 19, 20 and 21. In each instance she provided something less than an hour's notice of absence. Pursuant to the employer's request, the employee submitted medical documentation for her absences from September 18-21.

On September 27 the employee called at the employer at 11: 15 a.m. to report that she would be absent. The employee apologized and stated that she had spent the entire morning frantically looking for her keys, which she believed her boyfriend had taken, and was trying to find a babysitter for a sick child. The employer notified the employee that she was discharged.

A statutory provision designed to address situations in which an employee is discharged because of absence or tardiness without adequate notice, provides, as follows:

108.04(5g) 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 above-cited provision does not apply in this case. The employer has a written attendance policy, a copy of which was provided to the employee, which notified her that failure to provide adequate notice of an absence or tardiness may lead to discharge. The employee was absent on five or more occasions without adequate notice and received a warning concerning her violation of the policy. However, the commission is not persuaded that the employer's policy satisfactorily describes the process for providing adequate notice of tardiness or absence. While the employer's policy states that absences must be reported at least an hour before the shift, the policy does not provide a telephone number or otherwise specify to whom notice must provided, and the employee expressed considerable confusion on this point. Further, the evidence failed to demonstrate that the employer applies the policy uniformly to all of its employees. The attendance policy states that failure to notify the employer of an absence at least an hour prior to the scheduled start time is considered a no-call-no-show and may result in discipline, up to and including termination, and that two consecutive no-call-no-shows is considered a voluntary quit. The policy further states that five absences in a 12-month period is viewed as excessive and may lead to termination. In this case, the employee was discharged after seven absences without adequate notice, several of which fell on consecutive days. The employer presented no evidence to suggest that all employees are disciplined in the same manner for their violations of the attendance policy and, to the contrary, the commission finds that the policy permits employer discretion and a lack of uniformity in application.

Having concluded that Wis. Stat. § 108.04(5g) does not apply, the next question to decide is whether the employee was discharged due to misconduct.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 employee's attendance record was poor. However, the vast majority of her absences were due to her own or her child's illness, for which medical documentation was presented upon request. Although the employee did not comply with the employer's directive that she provide a full hour's notice of each absence, all of those absences were reported to the employer prior to the start of her shift, and the employee testified that she often attempted to call the employer at an earlier time but was unable to get through to anyone.

The employee was tardy once because she overslept, and missed work on the last occasion due to circumstances that may have been avoidable. However, these two instances are insufficient to warrant a finding of misconduct.

The commission therefore finds that in week 39 of 2007, the employee was discharged, but not for failure to notify the employer of absenteeism or tardiness, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that the employee's discharge was not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2007, provided she is otherwise qualified. She is not required to repay the sum of $1104 to the Unemployment Reserve Fund.

Dated and mailed March 28, 2008
ainslje . urr : 164 : 9  MC 606  MC 605.05

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility, but is as a matter of law.

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