CHAD D UEBE, Employee

MERCHANTS DELIVERY
MOVING & STORAGE CO, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was untimely filed. The commission has reviewed the record and the positions of the parties and makes the following:

1. Late petition

The adverse appeal tribunal decision was issued January 10, 2013, and contained a petition deadline of January 31, 2013. The employer's petition was faxed March 7, 2013. Accordingly, it was not timely. As an explanation for the late filing, the employer's representative indicated that it did not receive a copy of the appeal tribunal decision until after it requested a copy from the hearing office on March 4, 2013. It received the decision on March 5, 2013 and filed its petition two days later.

The commission finds that the employer's petition was late for a reason beyond its control. The employer did not receive the appeal tribunal decision until after the appeal period had passed. Based upon these facts and circumstances, the commission concludes that the employer's petition was late for a reason beyond its control.

The commission therefore finds that the employer failed to file a timely petition for commission review, but that such failure was for a reason beyond its control, within the meaning of Wis. Stat. § 108.09(6)(a). Accordingly, the commission will proceed to review the appeal tribunal decision.

2. Merits

The employee worked over four years as a mover/driver for the employer, a moving and storage company. His last day of work was November 12, 2012. He was discharged November 14, 2012 (week 46).

The employer did not have a written attendance policy. Over the final six months of his employment, the employee was frequently tardy. The employer issued warnings regarding the employee's tardiness.

On June 8, 2012 and August 16, 2012, the employee called in hours after the start of his shift and notified the employer that he would be tardy because he had overslept. On each occasion, the employer told the employee not to come in. On October 3, 2012, the employer called the employee 40 minutes after his shift started to find out why he had not appeared for work and discovered that the employee had overslept. He was told to stay home. Following the October 3, 2012, tardy, the employer issued the employee a written warning regarding his tardiness. The employee signed the warning.

After that warning, the employee texted the employer before his shift on October 5 and announced he would be late because he had to run somewhere. On October 19, the employee was 30 minutes tardy because of trouble sleeping the night before. The employer issued the employee another warning for his tardiness. The warning states "[T]old him it would cost him his job if this continued."

On October 30, 2012, the employee called in two hours after his shift to notify the employer that he would be absent due to illness.

On November 12, the employee was 20 minutes tardy because he overslept. On November 13, the employee was 45 minutes tardy, partly because he was stuck in traffic. When he arrived at work he was sent home. On November 14, the employer notified the employee that he was discharged for tardiness.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The commission has been consistent in holding that except in those 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. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003).

The employee received two warnings in October, the second of which put the employee on notice that his job was in jeopardy if he continued to be tardy. At the hearing, the employee denied that he received the second warning that his job was in jeopardy. However, the ALJ did not credit the employee's denial and found that he was warned. The commission agrees that the employee was warned that he would be discharged if he continued to be tardy.

The employer did not discharge the employee when he called in sick on October 30. However, when the employee was again tardy two weeks later on consecutive days, the employer acted swiftly to discharge the employee. The employer did not undermine its final warning to the employee with this slight delay.

The employee was tardy six times in a six week period and received two warnings. Most of the employee's tardies were of considerable duration and were due to oversleeping, which is not a valid reason for being tardy or absent from work. The employee was on notice that his job was in jeopardy and what the employer's expectations were. Nevertheless, he failed to improve his attendance. The employee's conduct demonstrated a deliberate and substantial disregard of the employer's interests in the employee's regular attendance.

The commission therefore finds that in week 46 of 2012, the employee was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,719.00 for weeks 47 through 52 of 2012 and weeks 1 through 7 of 2013, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 employee 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.

The employer's petition for commission review is accepted. The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2012, 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. The initial Benefit Computation (Form UCB-700), issued on November 14, 2012, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed May 9, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ Robert Glaser, Commissioner

/s/ C. William Jordahl, Commissioner

The commission did not discuss witness demeanor and credibility with the ALJ. The commission accepts the ALJ's findings but reaches a different legal conclusion when applying the law to those facts.

uebecha . urr : 178 : 5

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uploaded 2013/06/04