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


PAMELA R ALLEN, Employe

MILWAUKEE CHRISTIAN CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607323MW


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 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 about ten months as a child care worker for the employer, an organization which operates a daycare center. Her last day of work was October 1, 1998 (week 40), and she was discharged on October 6, 1998 (week 41).

The issue which must be decided is whether the employe's discharge was for misconduct connected with the employe's employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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."

The employer contended that the employe's attendance record, combined with her failure to notify her supervisor of her absence on October 5, 1998 amounted to misconduct. The commission agrees. The employe's absences and tardiness were generally for valid reasons, in that she was ill or needed to care for her children. In addition, she was tardy for medical reasons or because of her children's school related activities. However, the employe had a significant number of absences and tardiness. The employer had already adjusted her schedule in order to help her report to work on time. The employe was told to bring in documentation for an absence in September which she stated was for the purpose of attending the funeral of a nephew. The employer excused the absence but requested documentation of the absence. In addition, the employe had been informed that she needed to talk directly to the director if she was absent, however, the employe failed to do so, instead claiming that she had left a message on the answering machine at about 5:30 a.m. The commission does not credit the employe's testimony that she left a message. The ALJ found the director credible when she said there had been no message, but believed that something might have happened to the message, or the employe might not have properly left the message. He further notes that she had a doctor's excuse for the time period at issue, so there was no reason for her not to leave a message. However, the commission does not credit the employe's testimony that she left a message because the employer had no knowledge of the answering machine malfunctioning before. In addition, the employe had not given proper notice to the employer, despite the fact that she was aware she was supposed to call and speak directly to her supervisor. Finally, the employe had failed to follow the employer's instructions with regard to providing documentation with regard to the funeral. The employe's attendance was poor, and even if her absences were for valid reasons, she should have given the employer notice of her absence as instructed. Even if the commission were to credit the employe's testimony that she left a message which was somehow lost, the employe had been told specifically to call in and talk to the director, yet she failed to do so.

The employe's failure to call in her absence despite knowing that she was required to do so amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 41 of 1998 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for week 41 of 1998 through week 6 of 1999, amounting to a total of $1462.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 41 of 1998, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $1462.00 to the Unemployment Reserve Fund.

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 employe 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: February 17, 1999
allenpa.urr : 145 : 3  MC MC 605.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing, and the reasons for his credibility determinations are noted in the commission's decision. However, for the reasons set forth in the decision, the commission disagrees with the ALJ's credibility assessment.

cc: WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SECURITY LTD


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