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

KRYSTLE K LAKIN, Employee

CORPORATE SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11606560MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2011, if otherwise qualified. There is no overpayment.

Dated and mailed January 30, 2012
lakinkr : 185 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee had some prior attendance concerns resulting in the provisionary agreement that she signed on March 9, 2011, and the written warnings issued on April 12, 2011. However, her discharge was precipitated by her final series of absences from May 9, 2011 through May 18, 2011.

On May 9, 2011, the employee was absent due to a medical concern which the employer did not directly dispute. The employee did not call in until shortly before the start of her shift, but given the fact that she had a medical condition, her late notice was not shown to have evinced an intentional and substantial disregard of the employer's interests.

On May 10, 2011, the employee again did not report to work due to her medical condition, and did not call to notify the employer. She did not call because her cell phone had lost its charge and she had left her charger at an out-of-town relative's house. This was a questionable excuse given the fact that even without a landline at her home she most likely could have located a phone elsewhere. However, she contacted the employer the next day, May 11, 2011, and explained what had happened, and the employer simply told her to contact it again after she had seen her physician.

The employee continued to be absent with daily notice provided to the employer through May 16, 2011. On May 17, 2011, she was discharged from a hospitalization that had begun on May 13, 2011. She failed to contact the employer on May 17, 2011, but had informed it the previous day that she hoped to be discharged from the hospital on May 17, 2011. She telephoned the employer on May 18, 2011, and indicated she was planning to return to work on May 19, 2011, but the employer at that time informed her that her employment was terminated because it considered her absences to have constituted an abandonment of her job. On May 19, 2011, the employee brought the employer medical documentation excusing her from work through a return date of May 19, 2011. However, the employer again told her she had been terminated.

The employee could likely have found a way to have contacted the employer on May 10, 2011 and on May 17, 2011, and these failures may have constituted unsatisfactory conduct. However, to find misconduct for unemployment insurance purposes there must have been a willful, intentional and substantial disregard of the employer's interests. The two failures to notify the employer must be viewed in the context of the employee's ongoing illness requiring substantial hospitalization, and in consideration of the fact that she did contact the employer on the days before and after each of these two dates. The evidence presented demonstrates that the employee would not have been discharged had she not experienced an illness resulting in her final series of absences, and that given the particular circumstances of this case, misconduct under the Boynton Cab standard was not demonstrated.



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