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

JUSTIN M HENDREN, Employee

MEYERS PLUMBING SERVICE LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08601177WK


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a plumbing contractor, for four and a half years, must recently as an apprentice plumber. His last day of work was January 9, 2008. He was discharged on January 10, 2008 (week 2).

The employer has an unwritten policy that workers must call in before their shift to report an absence.

On May 23, 2007, the employee was absent without notice. The employee advised the employer that he was having personal problems. He was warned that if he was not coming to work he was expected to call in.

The employee was absent without notice on December 13, 2007, and again on December 26. Both instances were due to being depressed and oversleeping. On December 28 the employee received a warning that if he missed work again without notice his employment would be terminated. Upon receipt of this warning the employee went to see a doctor who prescribed an anti-depressant medication.

On January 10, 2008, the employee missed work without notice because he overslept. The employer called the employee half an hour into his shift and woke him up. The employer discharged the employee that day.

The initial issue to be decided is whether the employee was discharged for failure to notify the employer of absenteeism, within the meaning of Wis. Stat. § 108.04(5g).

Wisconsin State § 108.04(5g) does not apply in this case where the employer has no written attendance policy, and because the employee did not have a sufficient number of absences without adequate notice to fall within the purview of the statute.

The next issue to be decided is whether the employee's discharge was due to misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

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."

In May of 2007 the employee missed a day of work without notice and was warned about his conduct. He then went six months without another no-call-no-show. In December the employee missed two days of work without notice because he was depressed and overslept. Immediately after receiving his second and final attendance warning, the employee went to see a doctor who prescribed anti-depressants. The employee's actions demonstrate that he took the employer's warning seriously and wanted to get his personal problems under control so that they would not interfere with his attendance. While the employee did miss a day of work thereafter, he testified that this occurred because he found the anti-depressants fatiguing and that he overslept. Certified medical evidence supports the employee's assertions that both his depression and the medication he was taking for it could cause fatigue and somnolence. Although the employee did not go back to his doctor to get the medication adjusted, this is understandable where he had only been on the medication about a week.

Under the circumstances, the commission believes that the employee's failures to report to work or provide notice of his absence on the days in question, while unacceptable to the employer, were for reasons not fully within his control. As such, the commission concludes that the employee's actions did not evince wilful misconduct on his part.

The commission, therefore, finds that in week 2 of 2008, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 2 of 2008, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 12, 2008
hendrju.urr : 164 : 1 MC 605.05

/s/ 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 based upon a differing assessment of witness credibility. The appeal tribunal found that there was no testimony or medical evidence to support a finding that the employee's depression affected his ability to give notice of his absences. The commission disagrees.


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uploaded 2008/06/20