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

LUKE S SCHUMACHER, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10403985AP


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 over 10 years as a clerk for the employer, a grocery store. His last day of work was on August 7, 2010 (week 32).

The employer's attendance policy is based on a point system. When a worker accumulates six points, the worker is discharged.

In the final year of his employment, the employee was absent three times with notice due to illness. He was 50 minutes tardy on one occasion due to oversleeping. He had nine occasions of failing to punch in or out and 11 occasions when he was recorded as returning 1-2 minutes late from break. The employer acknowledged that these late punches could occur if an employee had to wait for a co-worker to punch in first. The employee received warnings whenever he went over 3 points. His last warning was on July 22, 2010, when he reached 5 points. Thereafter, he failed to punch in or out on two occasions and was 1-2 minutes late from break once. On August 7, the employee was discharged for accumulating six points in violation of the employer's attendance policy.

The initial issue is whether the employee was discharged for excessive absenteeism or tardiness without providing adequate notice to the employer.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with his or her employment. However, the subsection language, "unless sub (5g) applied" requires a determination whether Wis. Stat. § 108.04(5g) applies before the general misconduct analysis under Wis. Stat. § 108.04(5). See Dykstra v. Sulzer Machine Mfg. Inc., UI Dec. Hearing No. 06201124RH (LIRC October 6, 2006).

Section 108.04(5g) of the Wisconsin Statues provides that individuals who have been discharged for absences or incidents of tardiness without adequate notice to the employer and who satisfied the statutory requirement set forth in that subsection 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 or her weekly benefit rate. In this case, the employer failed to establish that this was a discharge under Wis. Stat. § 108.04(5g). In particular, the employee was not discharged for failure to give the employer adequate notice of his absences or failure to give adequate notice of at least six tardies. Therefore, the employer failed to establish that the employee's absences or tardiness met the standard set in Wis. Stat. § 108.04(5g).

The remaining issue to be decided is whether the employee was discharged for misconduct connected with his employment.

A continuing pattern of tardiness may certainly constitute misconduct; yet, in Harmon v. Ameritech Services Inc., UI Dec. Hearing No. 02607385MW (LIRC April 8, 2003), the commission held that more should be done than a "mere totaling of the number of occurrences." In particular, the commission also considered whether the worker's attendance showed any trend towards improvement, signaling an attempt to correct his or her poor attendance, and the amount of time involved to help determine the seriousness of the conduct and the effect on the employer's interests. See Harmon.

In a similar attendance case with this employer, Woodrum v. Woodmans Food Market, U I Hearing 06002681JV (LIRC Nov. 17, 2006), the commission noted that employees were required to punch in four times per shift. Given the sheer volume of punches, a certain number of trivial late punches might be expected.

In the present case, the employee had one blameworthy tardy and punched in 1-2 minutes late from break 11 times in a year long period. While the employee accumulated points in excess of those allowed under the employer's system, his conduct did not demonstrate a deliberate and substantial disregard of the employer's interests. Therefore, the commission concludes that the employee's discharge was not for misconduct.

The commission therefore finds that in week 32 of 2010, the employee was discharged from his employment but that the discharge was not for misconduct connected with his work 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 32 of 2010 if otherwise qualified.


Dated and Mailed May 13, 2011 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility or demeanor with the ALJ prior to reversing. The commission's decision is not due to any differing assessment of witness credibility. It accepts the findings of the ALJ but reaches a different conclusion when applying the law to those facts.

cc: Attorney Craig R. Johnson
Attorney Jacob Frost

schumlu . urr : 178 : 1


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


uploaded 2011/08/03