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


HOWARD D ALEXANDER, Employe

BECKER FOOD CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601581MW


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 employe worked for the employer, an institutional food supplier, for about six months as a "freezer person." His last day of work was January 14, 1999, and he was discharged on January 29, 1999 (week 5).

The employe was absent from work on August 7, 1998, because of water in his basement.

On August 10 the employe notified the employer that he would not be at work because he had gone to Detroit to assist his mother, who was suffering from an aneurysm, and his car had broken down. He was then absent without notice on August 11.

On August 24, 25, and 27, the employe was absent from work because he was hospitalized due to a torn esophagus. He presented the employer with a doctor's excuse upon his return.

On October 15 the employe notified the employer he may not be in, and then did not report for work. The employe explained that he needed the day off to fill out some paperwork related to the paying of his medical bills.

On November 20 the employe notified the employer he would need to miss work due to important personal business. The employe had to obtain an identification card in order to cash a check.

The employe was out sick from November 30 through December 3, and presented a doctor's excuse for those absences.

The employe was out sick on January 18, 1999. He then missed work without notice on January 19. On January 20 the employe notified the employer he was suffering from back spasms, and missed work that day and the next for that reason. On January 22 the employe went to a doctor, but was unable to see his regular physician, who was out of the office that week. Although the employe asked the doctor to provide him with a medical excuse for the entire week, she provided him with an excuse only for the time of the doctor's visit itself, on which she indicated that the employe was seen for a shoulder injury. While at the doctor, the employe also reported that he had the flu. The employe reported to work after his doctor's appointment on January 22, but notified his supervisor that he did not feel up to working and would come in on Monday if he could.

On Monday, January 25 the employe called the employer to report that he was unable to work due to dizziness associated with high blood pressure and that he was going to see his doctor. The employer told the employe he would need to provide a doctor's excuse covering the time off in the previous week or he would be discharged. The employe responded that he would not be able to obtain a doctor's excuse for that period because he was had not been seen by his regular doctor. The employe saw his own doctor on January 25. He did not ask his doctor to supply him with an excuse for the previous week's absence, but obtained an excuse removing him from work from January 25-27. That day the employe contacted his union office, and was told that he should see his union representative on January 28 before returning to work.

The employe did not report for work on January 26, and the record is silent as to whether he provided notice of his absence. On January 27 the employe called the employer at 10:00 a.m., after the starting time for his regular shift, to inquire about his status. The employe was told that he needed to get a doctor's excuse in order to return to work. The employe indicated he did not have a doctor's excuse. On January 28 the employe did not report for work or call in. He did, however, meet with the union representative, who told the employe he had talked to the human resource director and that the employer did not want him back at work.

On January 29 the employe came to work, and was again asked if he had obtained a doctor's slip to cover the time he was off. The employe indicated he had not. He did not present the doctor's slip from January 25-27. At this point the employe was notified he was discharged.

The issue to be decided is whether the employe's discharge was due to misconduct connected with his 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 employe missed work on numerous occasions during his short period of employment, often without notice to the employer or for reasons that were not valid. The employe was absent during his last two weeks of employment, allegedly due to personal illness, but was unable to provide the employer with a doctor's excuse upon its request, in spite of having been notified that he would be discharged if he failed to do so. Although the employe did have a doctor's excuse covering a portion of his term of absence, he did not provide this to the employer and could offer no reasonable explanation as to why not. While the commission believes that the employer could have done a better job of warning the employe that his job was in jeopardy and explaining its expectations to him during the course of his employment, it nonetheless concludes that the employe's overall attendance record was egregious and that the employe did not make sufficient efforts to maintain an acceptable level of attendance or to provide the employer with the information it sought regarding his absences.

The commission, therefore, finds that in week 5 of 1999, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 6 through 27 of 1999 in the total amount of $3,698, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 5 of 1999 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $3,698 to the Unemployment Reserve Fund.

Dated and mailed August 20, 1999
alexaho.urr : 164 : 1  MC 605

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. Although the administrative law judge indicated that she felt the employe was pretty credible, based upon its review of the synopsis, and after listening to the hearing tapes, the commission disagrees and questions the employe's overall credibility, both with regard to his absences and his efforts to provide documentation to the employer.


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