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


SCOTT G MACHO, Employe

PHIL & MIKES PAINTING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600888WK


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 approximately one year as a painter for the employer, a painting company. The employe's last day of work was September 9, 1998 (week 37). The employe was discharged on September 10, 1998 (week 37).

Throughout the course of his employment, the employe frequently reported late to the workplace. On numerous occasions the employer informed the employe that it was important for the employe to report to work on time. The employe acknowledged this. Despite these requests, the employe continued to report for work late. On or about August 26, 1998, the employer warned the employe that it could no longer tolerate the employe's tardiness. The employe was informed that, if he was tardy again, he would be discharged. The next week and a half, the employe's attendance/tardiness improved. On September 9, 1998 the employe reported 15 minutes late for work due to traffic. The employe completed his work day. On September 10, 1998, the employe was scheduled to begin work at 7:00 a.m. He did not report for work at that time. At approximately 7:20 a.m. the employer telephoned the employe at his home and spoke with him. The employe was informed that he was discharged from his employment for his continued tardiness.

The issue is whether the employe's actions, for which he was discharged, constitute misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). 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 contends that the employe's continued tardiness, despite warnings, constituted misconduct. The commission agrees. The employe admitted that he had been warned that his attendance was inadequate and that he could be fired for his tardiness. When asked why he was tardy so often in August, prior to his final warning, the employe had no specific recollection of why he was late on any of those dates, except one date when he had a probation meeting to attend. In his defense, the employe also explained that his starting times changed from day to day.

The ALJ concluded that while the employe was provided with a final (verbal) warning the week before he was discharged, the employe was again tardy on September 9, but received no discipline or reprimand from the employer. The ALJ noted that it was the second incident of tardiness on September 10, 1998 that triggered the employer's discharge of the employe. The record supports these findings. Nonetheless, the employe was apprised that his tardiness had to end and that his failure to improve could and would result in discharge.

The commission has consistently held that repeated attendance violations, in view of warnings, indicate a failure to improve attendance and constitutes an intentional disregard of the employer's interests. The facts here do not distinguish this case from any other case in which an employe fails to improve his attendance. The commission therefore concludes that the employe's overall tardiness pattern, despite the employer's failure to discharge the employe on September 9, 1998, constitutes an intentional and substantial disregard of the employer's interests and standards of conduct the employer had a right to expect of the employe.

Therefore, the commission finds that in week 37 of 1998, the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $2,757.00; for which he is not eligible and to which he is not entitled, within the meaning 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 37 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe 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 employe is required to repay $2,757.00 to the Unemployment Reserve Fund.

Dated and mailed  May 12, 1999
machosc.urr : 135 : 1  MC 605.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ as credibility was not at issue. The commission does not disturb the ALJ's factual findings. Rather, the commission reaches a different legal conclusion when applying the law to the facts at hand. The commission is satisfied that the employe's overall attendance violations and lack of improvement, despite warnings by the employer, is sufficient to support a finding that the employe's discharge was for misconduct connected with the employe's employment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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