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


ANTHONY D WOODEN, Employe

THE PELTZ GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602703MW


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 22, 1999
woodean.usd : 105 : 6  MC 605.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of no misconduct. Many of the employe's attendance failures were due to lack of transportation. Ordinarily, of course, it is an employe's responsibility to present himself at work on time. In this case, though, the employe gave notice to the employer at the time of hire that he would have to rely upon others for transportation to work. The employer hired the employe anyway, so it cannot subsequently call misconduct the attendance failures the employe essentially warned the employer could occur.

Some of the employe's other attendance failures also were out of the ordinary. For example, he had two absences without notice which, under most circumstances, is close to misconduct for unemployment insurance purposes. One instance was due to the employer's not having provided the employe with a telephone number to give notice of absences, however; the other occurred after the employe's residence burned down and the employe no longer had the employer's telephone number in his possession.

For these reasons, the commission cannot conclude that the employe's attendance failures were the intentional disregard of the employer's interests which is misconduct for unemployment insurance purposes. The commission therefore has affirmed the appeal tribunal decision.


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