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


DWIGHT L GODBOLT, Employe

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601442MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed June 11, 1999
godbodw.usd : 164 : 5  MC 605.09

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employer argues that the employe was tardy on three occasions for unknown reasons, for which no substantiation was provided to the employer, and that the employe's last attendance infraction, in which he was late due to transportation problems, was not attributable to the employer. The employer also maintains that the appeal tribunal did not consider the employe's entire attendance record. The commission has considered these arguments, but finds them unpersuasive. Mere proof of absence or tardiness, no matter how frequent, does not constitute misconduct, absent some evidence of culpable conduct on the part of the employe. That is particularly true where, as here, the employer has a "no fault" attendance policy by which all tardiness and absence is treated the same regardless of the reason. In this case, the employer failed to demonstrate that the employe's attendance record, although plainly unsatisfactory to the employer, was the result of blameworthy conduct on his part or that his absences or tardy arrivals were not for valid reasons. While, as the employer points out, it is not the employer's fault that in the last instance the employe had transportation problems, the commission agrees with the appeal tribunal that tardiness due to an unexpected flat tire does not evince a wilful or intentional disregard of the employer's interests. Moreover, even if the commission were to conclude otherwise, evidence of a single failure to report to work on time due to an invalid reason would not rise to the level of misconduct. Accordingly, the appeal tribunal decision is affirmed.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]