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


LINDA J MAYS, Employe

ADVANTAGE BANK FSB, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97601868KN


On February 27, 1997, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. As a result, benefits were denied. The employe filed a timely hearing request and a hearing was held before an appeal tribunal. On May 20, 1997, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe has filed a timely petition for commission review.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a bank, for approximately four years as a personal banker. Her last day of work was January 11, 1997 (week 2).

The employe took a ten-month leave of absence, from September 18, 1995 through August 6, 1996, in order to care for her young son, who suffers from leukemia and was hospitalized during portions of this time as a result. When the employe returned from her leave of absence she was told that all of her leave time had expired and that no more leave was available to her.

On or about December 2, 1996, the employe missed a day of work because her husband was ill. On December 4, the employer notified the employe that any further absences would result in discipline, even if the reason was to take her son to the hospital. The employe was also told that she was to report her absences to Erika Strohm, and that if Ms. Strohm was unavailable she should go to Ms. Strohm's supervisor, Karen Schellin, and then proceed up the chain-of-command to two other individuals.

On the morning of January 10, 1997, the employe received word while at work that her son had to be taken to the hospital immediately. The employe attempted to contact Ms. Strohm, but was unable to reach her. She then called a co-worker and arranged to have the co-worker come in and cover for her. The employe told the senior teller about the situation and about her efforts to notify Ms. Strohm and to obtain coverage for her shift. The senior teller told the employe to leave, and she did so.

The employe worked on January 11, 1997, and was next scheduled to work on January 14. On January 13 the employe contacted Ms. Strohm and told her that her son was in the hospital and that he would be hospitalized for at least 48 hours. Ms. Strohm asked the employe to explain why she had not contacted Ms. Schellin before leaving work on January 10, to which the employe responded that she did not call Ms. Schellin because she knew what the answer would be and did not want a confrontation. Ms. Strohm did not ask the employe when she would be returning to work, but assumed that the employe would be back by January 16. She did not tell the employe what to do in the event she was unable to return by January 16, nor did she direct the employe to fill out a leave of absence form.

The employe did not report for work on January 16 because her son was still hospitalized. On January 17 she telephoned the employer and told the branch manager and a co-worker that she would be returning to work after her son was released from the hospital. The employe asked to speak to Ms. Strohm, but was unable to do so because Ms. Strohm was on vacation.

On or about January 21, 1997, Ms. Strohm returned from her vacation and telephoned the employe to find out why she was not at work. The employe explained that, although her son was now at home, he was very weak and was to return to the hospital the next day. Ms. Strohm directed the employe to report for a meeting on January 23, 1997, in order to discuss her absences.

During the January 23 meeting the employe was asked to explain why she left work on January 10 without calling Ms. Schellin and why she had not filled out a leave of absence form. The employe responded that she had not called Ms. Schellin because her first concern was to get her son to the hospital, that she was not aware she had to fill out a leave of absence request under emergency circumstances, and that she was scared to request a leave of absence because she felt her request would be denied. The employe was told that the employer would be having a meeting to discuss her status and would get back to her.

On January 28, 1997, (week 5) the employer presented the employe with a letter of termination. The question to decide is whether the employe's discharge during that week was due to misconduct connected with her 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 employee, 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 employee'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."

It is the employer's position that the employe engaged in misconduct by leaving work on January 10, 1997, without receiving the proper approval to do so, and by taking an unauthorized leave starting on January 14. The commission disagrees. Although the employe did leave work early on January 10, 1997, in order to take her son to the hospital, she engaged in no blameworthy conduct at that time. To the contrary, the employe acted reasonably and consistently with the employer's interests by attempting to contact her supervisor, arranging for a replacement to cover her shift, and notifying the senior teller about the situation and obtaining her permission to leave. While, under less pressing circumstances, the commission might agree that the employe was obligated to exactly follow the employer's chain-of- command, given the emergency circumstances that necessitated her early departure in this instance, the employe cannot be faulted for failing to do so.

The commission also notes that, to the extent the employe's failure to contact the appropriate supervisor on January 10 was because she feared she would not be granted permission to leave, those fears were not without justification. The employe had been specifically notified that she was not to miss work for any reason, including her son's hospitalization, and at the hearing the employer's human resource director testified that she could not say what action would have been taken had the employe asked whether she could leave work to take her son to the hospital. Under the circumstances, it seems entirely possible that the employe would not have been given permission to take her son to the hospital, and her reluctance to approach Ms. Schellin or one of the other supervisors is understandable.

With respect to the employe's absence after January 14, 1997, which the employer characterizes as an unauthorized leave of absence, the commission is again unable to conclude that the employe engaged in any actions that could be construed as misconduct. On January 13, prior to her first day of absence, the employe provided notice to Erika Strohm, the proper individual in the employer's chain-of-command, that she would be off work for at least two days because her son was in the hospital. Although the employer assumed that the employe would be back on January 16, the employe had made no representations to that effect, leaving her return to work date open-ended depending upon her son's release from the hospital. The employe was never provided any specific instructions with respect to calling in during her absence and was not told that she needed to complete a leave of absence form.

While the employe could have maintained better contact with the employer throughout the course of her absence, the employer was nonetheless aware of her absence and of the reason for the absence, and the employe did not disregard any specific instructions from the employer that she contact it at certain intervals during her absence. Further, while the employer suggests that the employe should have sought advance permission to take a leave of absence, given the unforeseen circumstances that required the leave, she could not reasonably have been expected to submit a leave of absence request ahead of time. Moreover, because the employe was notified that no further absences would be permitted for any reason, she had good reason to believe that requesting a leave of absence would be futile. The commission also notes that, although the employer was aware of the employe's absence, it did not ask her to submit a leave of absence form at any time prior to her termination.

Overall, while the employer may have made a valid business decision in discharging the employe based upon her inability to maintain acceptable standards of attendance, the commission is unable to conclude that the employe engaged in any conduct evincing a wilful and substantial disregard for the employer's interests or the standards of conduct it had a right to expect of her. The employe's absences were for valid reasons and with notice to the employer, and although she could have been more diligent with respect to staying in contact with the employer during the course of her absence, her actions were not so egregious as to rise to the level of misconduct, within the meaning of the law.

The commission, therefore, finds that in week 5 of 1997 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 5 of 1997, provided she is otherwise qualified.

Dated and mailed December 23, 1997
maysli.urr : 164 : 2  MC 605.05  MC 605.09

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

NOTE: Although the commission held a credibility conference with the administrative law judge, its decision to reverse the appeal tribunal decision did not involve any differing assessment of witness credibility. Rather, the commission's reversal is based upon a different interpretation and application of the unemployment compensation law under essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY JEFFREY SWEETLAND
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

ATTORNEY CAROLYN BURRELL
FOLEY & LARDNER


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