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

MELISSA GOMEZ, Employee

AURORA PHARMACY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08601281MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer for approximately a year as a billing representative. Her last day of work was January 28, 2008 (week 5).

The employer has an attendance policy which defines excessive absenteeism as more than six occurrences within a rolling 12-month period. The policy states that each instance of tardiness, defined as any punch-in five or more minutes after the employee's regularly scheduled start time, will be considered a 1/2 occurrence.

During the one-year course of her employment the employee was late for work by more than five minutes on over fifty occasions. The employee received a verbal warning for tardiness on February 26, 2007. In March the employer discussed the employee's continued tardiness with her and adjusted her start time from 8:30 a.m. to 9:00 a.m. to make it easier for her to get to work on time. The employee's attendance did not improve and she received another verbal warning on May 4. The employee received written warnings for tardiness on June 11 and August 3. The employee signed each of the warnings without comment. She indicated to the employer that she took full responsibility for the problem.

On November 26, 2007, at which point there was still no improvement in the employee's attendance, the employee's supervisor sent the employee an e-mail advising her that any additional late punches would warrant third-step disciplinary action. The employee was over an hour late on November 30 because she overslept. She was fifteen minutes late on December 3. On December 10, the employer gave the employee a final warning. The employer also referred the employee to the Employee Assistance Program (EAP). The employee attended one EAP session, but did not attend a second session. The employee told the employer that she forgot and felt she did not really need to go. Thereafter the employee was late for work on December 18, January 14, January 22, and January 24. On January 28, 2008, the employer notified the employee she was discharged.

The initial issue to be decided is whether the employee's discharge was for excessive absenteeism without providing adequate notice to the employer, within the meaning of Wis. Stat. § 108.04(5g).

Wisconsin Statute § 108.04(5g) provides that individuals who are tardy on six or more scheduled workdays in a 12-month period without adequate notice to the employer, where the employer has a uniformly applied written policy on notification of tardiness that satisfies certain statutory requirements, and where it has been shown that the employee received a copy of the policy and received at least one warning under the policy, will be ineligible to receive benefits until six weeks have elapsed since the discharge and the employee earns wages equal to at least six times her weekly benefit rate.

The above-cited provision does not apply in this case. The employer's attendance policy defines what constitutes a single occurrence of tardiness, but does not describe the process for providing adequate notice of tardiness and does not notify the employee that failure to provide adequate notice of tardiness may lead to discharge. More importantly, Wis. Stat. § 108.04(5g) only applies where the employee is discharged for failing to notify the employer of absenteeism. In this case, the employee was discharged based on her frequent tardiness and not because of a failure to provide notice.

The next issue to decide is whether the employee's discharge was for misconduct connected with her 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."

The employee was discharged for excessive tardiness; she was late for work on over fifty occasions during her year of employment. The employee received numerous warnings about her tardiness and was well aware that failure to improve could cost her her job. Nonetheless, the employee continued to report for work late on a regular basis. While at the hearing the employee testified that she suffered from depression and had a hard time getting up for work, she did not provide this excuse to the employer during her employment. The employee had an opportunity to write a response to each of her warnings, but chose not to do so and informed the employer she took responsibility for the problem. The employer, which adjusted her start time by half an hour to assist her in getting to work on time, indicated that if the employee had told it her tardiness was due to depression it would have handled the matter differently. The employee did tell the employer she was having personal problems and was referred to EAP, but never explained what the personal problems were or indicated that they were causing her tardiness. The employee missed her second of two EAP appointments and told the employer she did not think she really needed to go. The employee presented no medical evidence at the hearing, and indicated she has not seen a psychiatrist for her depression.

Under all the circumstances, the commission is not persuaded that the employee's tardiness was for valid reasons, and it concludes that her constant and excessive tardiness, after repeated warnings from the employer, was so egregious as to evince misconduct connected with her employment.

The commission, therefore, finds that in week 5 of 2008, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in week 5 of 2008 through week 11 of 2008 in the total amount of $2,434, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum 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 although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 5 of 2008 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $2,434 to the Unemployment Reserve Fund.

Dated and mailed June 26, 2008
gomezme . urr : 164 : 1 MC 688, MC 678 ; PC 714. 03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

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, but is as a matter of law. The administrative law judge found that the employer failed to demonstrate the employee continued to report for work late after the December 10 final warning because it failed to present her attendance records from that point on. However, the employee acknowledged that she continued to report for work late after December 10 and, although she could not recall the specific dates on which this occurred, indicated that she had no reason to dispute the dates which appeared on the termination notice. The commission is satisfied that the record contains sufficient competent evidence to warrant a conclusion the employee continued to report for work late after receiving her final warning.

The commission also notes that, although the administrative law judge addressed the question of whether the less severe disqualification provided for in Wis. Stat. § 108.04(5g) applies in this case, the administrative law judge did so only after concluding that misconduct had not been established. However, because the statute specifies that "unless sub. (5g) results in disqualification" an employee who was discharged for misconduct is ineligible for benefits, it is first necessary to determine whether the employee was disqualified under Wis. Stat. § 108.04(5g) before deciding whether there was disqualifying misconduct. The commission agrees with the appeal tribunal's ultimate conclusion that (5g) did not apply, although for the differing rationale stated in the commission's decision.

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 off set 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.


 

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