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


TONI M SCHUTTS, Employe

WISCONSIN LIMOUSINE SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608092MW


On November 24, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing, and hearing was held on December 21, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On January 6, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately eight months as a reservation agent for the employer, a firm engaged in providing transportation. Her last day of work was October 31, 1998. The commission concludes that the employe's attendance failures do not amount to misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe's attendance was satisfactory up to October 21, 1998. On that date, and again on October 28, 1998, the employe was late for work, due to having overslept. The employe generally worked second shift but, on the two days in question, she had been scheduled to work first shift. On both days, the employe eventually reported to work.

The incident precipitating the discharge was the employe's switching of her November 1 shift with a co-worker. Approximately a month previously, the employe had asked to be off November 1 (in order to attend a birthday celebration of some kind for her mother). Just before the employe's supervisor went out of town, the supervisor posted the schedule for the time period in question, and which showed that the employe was scheduled to work November 1. The employe arranged with a co-worker to switch shifts so she could be off November 1, and sent an E-mail to the supervisor to that effect. Just before the employe's scheduled return to work on November 4 (week 45), the supervisor discharged her for having made the unauthorized switch.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission concludes that the employe's attendance failures do not meet this standard. Simply put, the sum of the attendance failures for which the employe was discharged were two instances of tardiness and one instance of switching shifts with a co-worker. The employer argued that the employe did not have the employer's permission to switch shifts with the co-worker, that such switches had to be approved by the employer. As indicated above, however, the employe's supervisor was out of town. In addition, the employe previously had switched shifts with co-workers, with no objection by the employer. Further, the employe directly informed her supervisor, via E-mail, of the switch of shifts with the co- worker. Finally, the employer had characterized the employe's October 21 and 28 attendance failures as absences ("no shows"). This simply is incorrect. The employe was late on both days, but not entirely absent. For these reasons, the commission cannot conclude that the employe's attendance failures constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 45 of 1998, the employe was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance if she is otherwise qualified.

Dated and mailed: March 24, 1999
schutto.urr : 105 : 1 MC 605.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. The administrative law judge had found that the employe's attendance failures "demonstrated a pattern of gross negligence of such degree of seriousness as to imply deliberate disregard of the employer's interests." The commission simply concludes that, as a matter of law, the employe's attendance failures did not reach that standard.

cc: LIMOUSINE SERVICES

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employee was a reservation agent for the employer so she took calls for the employer. The majority does not explain exactly how late she was on the two days she was assigned first shift work. The employee usually began work at 3:00 p.m. but when she was scheduled first shift she was scheduled for 10:00 a.m. The earlier work was part of her regular schedule and she worked first shift once or twice a month prior to October.

The employee showed up for work at 3:00 p.m. on October 21 even though she was scheduled for 10:00 a.m. She said "In regard to why I showed at 3, I always work from 3 to 11 so it was kind of difficult to get up by 9am and go to work. In regard to whether they changed my schedule in October, no, it was just for that one day a week and I did not have that all the time. I just had that those 2 Wednesdays that month." The employee arrived at work at 2:30 p.m. or 3:00 p.m. on October 28. The employer called her at home between 12:00 and 1:00 p.m. to remind her to come in. Her excuse was "I overslept."

The employer also discharged the employee because she got a co-worker to substitute for her on November 1 without permission of the employer. In the past when the employee switched with a co-worker, she had always had permission. The employee did not get the manager's signature on the required form, which would grant permission to switch. The employee merely e-mailed the manager about the change even though she knew the manager was out of town and would not be back until after the shift. The change required the co-worker to work back to back shifts. The employer did not want workers to work double shifts.

The employee had been warned if she was a no call no show again she would be discharged and she was when she did not report on November 1.

For these reasons, I agree the administrative law judge and would affirm his decision.

Pamela I. Anderson, Commissioner


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