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

CONSUELO L JOHNSON, Employee

BURLINGTON COAT FACTORY
OF WISCONSIN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09004579MD


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 retail store, for approximately ten months as a member of the "mark downs team." Her last day of work was June 30, 2009 (week 27).

The employer has an attendance policy which provides that workers may be discharged for three incidents of absenteeism or tardiness.

In March of 2009, the employee missed three days of work without notice to the employer. The employee's mother had a heart attack, and the employee drove to Colorado to be with her. She neglected to think about contacting the employer. Thereafter the employee was issued a written warning and notified that any additional violation of the employer's attendance policy would result in her termination.

The employee worked a set schedule until late May, at which time a new manager took over and insisted that the employee work a flexible schedule. Thereafter, the employee was required to check the schedule every week to determine when she would be working.

On June 29, 2009, the employee missed work without notice. The employee had checked her schedule for the week, but inadvertently wrote down an incorrect date. She was, therefore, unaware that she was scheduled for work on the day in question. The following day the employer discharged the employee for violating its attendance policy.

The first issue to be decided is whether the employee was discharged for failure to notify the employer of absenteeism or tardiness, pursuant to Wis. Stat. § 108.04(5g).

The statute provides that individuals who are absent on five 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 his weekly benefit rate. See Wis. Stat. § 108.04(5g). The aforementioned provision does not apply in this case, as the employee had an insufficient number of absences.

Having concluded that Wis. Stat. § 108.04(5g) does not apply, the next issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

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 missed a total of four days of work without notice to the employer. The first three absences, although for valid reasons, demonstrated culpable conduct on the employee's part in that she failed to provide notice to the employer. Thereafter, however, the employee missed work only once, due to an honest mistake on her part. The employee checked the schedule, but accidentally wrote down the incorrect work date. She did not report her absence to the employer, as she did not realize she was scheduled to work. While the employee was aware that her job was in jeopardy and should have carefully noted her work schedule, the commission does not believe that her failure to do so in one instance was so egregious as to warrant a finding of misconduct.

The commission, therefore, finds that in week 27 of 2009, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2009, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 11, 2010
johnsco . urr : 164 : 5 MC 605.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge stated that she found the employee to be very credible, but based her decision on factors other than credibility.

cc: Burlington Coat Factory (Madison, Wisconsin)


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