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

KODY G GURALSKI, Employee

HGP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12201592EC


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 as of week 13 of 2012 and thereafter, if he is otherwise qualified.

Dated and mailed November 16, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


In its petition for review, the employer asserted that the employee's absenteeism was excessive and that the employee provided questionable documentation for the absences, and little explanation for their necessity. The employer also noted that the employee failed to appear at the hearing and therefore did not present any evidence as to the reasons for his absences.

The employer bears the burden of proof to show misconduct in a case in which it terminated the employee. Yonke v. Piggly Wiggly Supermarkets, UI Dec. Hearing No. 10608874RC (LIRC Feb. 18, 2011). The employer, therefore, has the responsibility to present sufficient evidence to prove misconduct despite the employee's non-appearance at the hearing.

Generally, frequent attendance violations do not in and of themselves amount to misconduct. Cramer v. Walgreen Co. Illinois, UI Dec. Hearing No. 00000160MD (LIRC April 7, 2000). Absences with notice and for valid reasons will not support a conclusion of misconduct. Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Dec. Hearing No. 00608375 (LIRC Feb. 14, 2001); Johnson v. Holiday Inn Express, UI Dec. Hearing No. 06601389MW (LIRC May 12, 2006).

Lack of notice for the employee's absences was not cited by the employer as a reason for discharge. The employee called in all of his full-day absences, and the employer's representative at the hearing did not assert that the employee failed at any time to give adequate notice of his absences.

The question of whether the employee's absences were for a valid reason depends on the quality of the employer's proof. The absences that were critical to the employee's discharge were due to the employee's visiting his girlfriend in the hospital. This was a valid reason. (See, e.g., Johnson, supra (employee's absence to travel to the Chicago area to see her mother who was in the hospital having knee surgery considered a valid reason); Gosha v. Payless Shoesource, Inc., UI Dec. Hearing No. 06402072AP (LIRC Dec. 28, 2006) (employee's tardiness due to her grandmother's sudden illness and hospitalization was for a valid reason)).

The employer questioned the adequacy of the employee's note explaining these absences, asserting that it only referred to two of the five days of absence, and did not explain why the employee needed to be off work for as much time as he was. The best evidence of the inadequacy of the note would have been the note itself, which the employer did not produce at the hearing. Instead, the employer presented a hearsay summary report, purporting to quote from the note. This evidence is not adequate to prove that any of the employee's last five absences were for invalid reasons. See, e.g., Robinson v. Central Parking System of Wisconsin, Inc., UI Dec. Hearing No. 03603846MW (LIRC Dec. 16, 2003) (a witness's testifying as to what he saw on a video instead of showing the video at the hearing was insufficient evidence of employee misconduct).

In addition, even if the employer had shown that the absences were not for valid reasons, the employer would have had to show that the absences were sufficiently egregious to support a conclusion of misconduct, because the employee had not been put on notice that his job was in jeopardy. Except in cases in which the alleged conduct is sufficiently egregious, before there can be a finding of misconduct the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. Hainz v. Nelson Industries, Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct. 3, 2000); Munoz v. La Costa, Inc., UI Dec. Hearing No. 02607640MW (LIRC April 4, 2003). The attendance policy alone, without any specific warnings given to the employee, is not sufficient to put the employee on notice that his attendance record placed his job in jeopardy. Gehle v. Supercuts, UI Dec. Hearing No. 07000908MD (LIRC June 18, 2007).

For conduct to be sufficiently egregious, it has to involve a significant and wanton disregard of the employer's interests. Mullan v. The Equitable Bank, SSB, UI Dec. Hearing No. 02610586MW (LIRC June 5, 2003). In Gehle, supra, the commission found that three days of absence with prior notice due to incarceration, and one incident of tardiness with prior notice, even though they were not for valid reasons, were not sufficiently egregious to support a conclusion of misconduct. In this case, even setting aside the employer's failure to prove that the absences were for invalid reasons, it was not shown that the employee knew or had reason to know that the absences with notice to the employer were in significant and wanton disregard of the employer's interests.

guralko . usd : 107 : 2

 

 


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