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

GINA M SEYBA, Employee

COLUMBIA ST MARYS GROUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08607742MW


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 about seven and one-half years for the employer. Her last day of work was October 10, 2008. She was discharged on October 15, 2008 (week 42).

The issues to be decided are whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer under Wis. Stat. § 108.04(5g) or whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment under Wis. Stat. § 108.04(5).

Wis. Stat. § 108.04(5g)(a) - (d) provides as follows:

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 employee was absent for a seven day period in June. The employee was hospitalized due to a cardiac episode. The employer was aware at some point that the employee was in the hospital. She did not call the employer June 10, June 11, or June 12. The employer called her on June 13 at the hospital and indicated that they had put in for FMLA leave. The employer's manager told the employee that technically she should have been terminated, but HR had a discussion with her and they were not going to do it because she was a good worker.

The employee was absent on October 13 through 15, 2008, without notice to the employer. The employee was absent for reasons relating to a psychological condition. The employee submitted medical documentation certifying that she was unable to work at that time. The employee was discharged based on her absences without notice.

By the employer's own testimony at the hearing the policy is not uniformly applied. The employer testified she should have been terminated in June pursuant to the policy. In addition, the policy states that "no-call/no-show for three days will normally result in termination of employment." In addition, the employee was absent for three days without notice and she was not terminated. Second, the employer uses the word "normally" which indicates that the employer has discretion. Also, the policy provides, "Appropriate disciplinary action, up to and including termination will normally be required when an employee's accumulative absences or late arrivals over time are excessive." Again the employer uses the word "normally." Thus, by its own terms, the policy will not in fact lead to certain termination after the eighth occurrence.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 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 did not establish that it discharged the employee for misconduct connected to her work for the employer.

The employee had valid reasons for being absent. There were mitigating circumstances in connection with her failure to give notice, relating to the nature of her condition and how it interfered with her ability to function.

The commission therefore finds that in week 42 of 2008, the employee was not discharged for failing notify the employer of tardiness or absenteeism that was excessive, within the meaning of Wis. Stat. § 108.04(5g).

The commission further finds that in week 42 of 2008, the employer discharged the employee but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits beginning in week 42 of 2008, if she is otherwise qualified.

Dated and mailed January 30, 2009
seybagi . urr : 132 : 1 : MC 606 : MC 605.05

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission agrees with the ALJ that the employee's actions did not rise to the level of misconduct. The commission disagrees with the ALJ's conclusion that the employer met the requirements of Wis. Stat. § 108.04(5g).

In this case the ALJ determined that the employee's discharge was not for misconduct and then determined whether Wis. Stat. § 108.04(5g) applied. However, the language in Wis. Stat. § 108.04(5), "unless sub. (5g) results in disqualification" requires the decision maker to address the applicability of Wis. Stat. § 108.04(5g) before addressing whether the discharge was for misconduct under Wis. Stat. § 108.04(5).


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