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

DAVID S MCKITTRICK, Employee

WEATHERGUARD SYSTEMS HOME

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001535MD


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 weatherizing business, for about one year as a laborer. His last day of work was January 14, 2009 (week 3).

On October 16, 2008, the employee received a warning for five unexcused absences. His pay was cut $1 per hour for the next two pay periods as a disciplinary action.

On December 29, 2008, the employee received another warning for five more unexcused absences. The wage reduction was again imposed and made permanent, and the employee was advised that further violations would result in discharge.

The disciplinary action referenced above was issued by the employee's supervisor. However, when the employer's CEO learned about the matter, he disagreed with the supervisor's resolution of the situation and directed that the employee be discharged. The employee was notified of his discharge by telephone on January 15, 2009 (week 3).

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

The employee was discharged for poor attendance. However, the employee had already been disciplined for his poor attendance two weeks prior to the discharge with a pay reduction. The employee continued to work for the employer at the reduced wage for two more weeks, with no intervening absences, when he was discharged based upon the same conduct for which his pay was reduced. The commission has consistently held that, after a written warning or other disciplinary action has been imposed, the employer must demonstrate that there was additional culpable behavior on the employee's part to sustain a finding of misconduct. See, Hefti v. Wal-Mart Associates, Inc. (LIRC, May 13, 2003); Rash v. Maynard Steel Casting Co. (LIRC, Dec. 5, 2000); Pierce v. The Kelch Corp. (LIRC, May 31, 2000). Conduct for which the employee has already been disciplined prior to the discharge, no matter how culpable, cannot form the basis for a finding of misconduct.

The commission, therefore, finds that in week 3 of 2009, 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 modified as to the week of issue and in accordance with the foregoing findings of fact and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2009, provided he is otherwise qualified. There is no overpayment as a result of this decision. This matter is not remanded for further proceedings regarding potential violations of Wis. Stat. § 108.24(3).

Dated and mailed July 22, 2009
mckitda . urr : 164 : 5  MC 688.1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The appeal tribunal's finding of misconduct in this case was based upon a conclusion that the employee was discharged for threatening to file an unemployment claim. This finding is in error. The record contains nothing to indicate that the employer attempted to dissuade the employee from filing an unemployment claim, and the commission sees no reason to believe that the employee was discharged for any reason other than his attendance record.

The commission also disagrees with the appeal tribunal's conclusion that the discharge occurred on February 5, 2009 (week 6). The employee last performed services for the employer on January 14, 2009, and was notified of his discharge on January 15, 2009 (week 3). Although the employer sent the employee a letter notifying him of the discharge on February 5, 2009, the date of discharge is when the separation occurs, not when the employer puts it in writing.

The commission has modified the appeal tribunal decision to reflect that the employee was, in fact, discharged due to his attendance, and that the discharge occurred in week 3 of 2009. However, because the record indicates that the employee had already been disciplined for the same absences which subsequently resulted in his discharge, the appeal tribunal's finding of no misconduct is affirmed.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/07/30