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


TERRY W MCGLASTON, Employe

TOWER AUTOMOTIVE PRODUCTS CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600019MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about two months as a producer assembler for the employer. His last day of work was October 22, 1998.

The employe failed to appear for work after October 22, 1998. On October 29, 1998, the employer's growth and development leader sent a letter to the employe stating that he had been absent since October 23. The letter notified the employe that his seniority would be broken unless he reported for work by November 3 or furnished a satisfactory reason for his absence no later than November 3.

On November 2 the employe's mother called the growth and development leader and stated that her son could not return to work by November 3rd because he was incarcerated. The employe's mother asked if her son could get a leave of absence. The growth and development leader informed the employe's mother that she would call the employe's mother back.

On November 4, 1998, the employer received a notice that the employe was granted Huber privileges as of November 4. The employe did not return to work. On November 6 or November 7 the growth and development leader called the employe's mother back and notified the employe's mother that a leave of absence was not granted for incarceration.

On November 9, the growth and development leader sent a letter to the employe indicating that he was being removed from the employer's employment rolls effective November 4 for failing to return to work or furnish a satisfactory reason on or before November 3.

The initial issue to be decided is whether the employe was discharged from his employment or quit.

The commission finds, as the employer contended at the hearing, that the employe was discharged from his employment. The employer ended the employment relationship by removing the employe from its employment rolls.

The next issue is whether the employe was discharged for misconduct connected with his work.

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."

An employer has a right to expect that an employe will appear for work as scheduled or, if absent, give notice of such absence and provide a valid reason for such absence. In this case, the employe failed to appear for work as scheduled. As a result the employer sent the employe a letter warning that his failure to appear or provide an adequate reason for his absence would result in the end of his employment. The employer received no response from the employe. Even accepting the testimony that the employe's mother contacted the employer to state that the employe was incarcerated, such explanation would not constitute a valid reason for absence. The employe's ongoing absence from work, without valid reason, and without appropriate notice, evinced an intentional and substantial disregard of the employer's interests and of the employe's obligations to the employer.

The commission therefore finds that in week 45 of 1998, the employe was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $2807.00 for weeks 1 through 13 of 1999, for which he was not eligible and to which he 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 employe. 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). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 45 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2807.00 to the Unemployment Reserve Fund. The benefits for weeks 49 through 52 of 1998 and $157 in benefits in week 1 of 1999 were withheld as forfeitures. Since benefits are now denied for those weeks, those benefits cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $1069.00.

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 April 2, 1999
mcglate.urr:132 : 6 : MC 605.091

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission's reversal of the appeal tribunal decision results from the commission reaching a different legal conclusion when applying the law to the facts.

cc: R E HARRINGTON INC
CAROL WEIDINGER

ATTORNEY JOLENE SHELLMAN
VARNUM RIDDERING SCHMIDT & HOWLETT


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