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


LATOASHA M VAUGHN, Employe

WM K WALTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602815MW


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 for about two months as an order picker for the employer, the operator of a model railroad and hobby products distribution business. Her last day of work was April 21, 1998 (week 17). She was discharged on April 22, 1998 (week 17), as a result of her attendance.

The employe had performed services for the employer through a temporary help business before being hired as a permanent worker in February, 1998. At the time of hire, the employe was given a "Performance Appraisal" in which she was informed that her attendance was considered to have been unsatisfactory and that more than one unscheduled absence in a 30-day period or three tardies/leave earlies would result in discharge. The employer's attendance policy states that progressive discipline, including verbal and written warnings, as well as disciplinary suspensions, may be employed by the employer to correct attendance problems. Following her hire in February, the employe left early three days, was late 10 days, and was absent seven days. Her shift was changed from second to first in order to assist her in getting to work. Most of the employe's attendance infractions were caused by child care problems. Her 18-month-old baby went to a day care center and was normally picked up by a van. At times the van did not run or was late, causing the employe to be late for work. She left early to attend a course and did so with notice to and the permission of her supervisor. However, she did not remember why she left early on two occasions, although she asserted that she had permission. She was uncertain why she was absent on February 16, and March 2, 3 and 23. She was asserted that she was absent due to the illness of her child, including her last absences of April 20 and 22 1998 (week 17). However, she did not actually speak to a supervisor until after her shift had started. While her child's illness was certainly a valid reason for her absence, the employe failed to establish that all of her absences were for valid reasons, as often she did not remember the reason that she was absent. Further, her attendance had been poor when she worked for the employer through the temporary agency, and she was specifically notified when she was hired that she might be discharged for unscheduled absences. In addition, the employer had changed her schedule to help her rectify the situation. The employe's attendance record as a whole demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her employment.

The commission therefore finds that in week 17 of 1998 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5), but that as of week 12 of 1999, at least seven weeks had elapsed since the end of the week of discharge and the employe had earned wages for work performed in covered employment equaling at least 14 times the benefit rate which would have been paid the employe had the discharge not occurred, within the meaning of that section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the wages paid for work for the employer before the discharge shall be excluded from the computation of maximum benefit amount. Beginning in week 12 of 1999, the employe is eligible for benefits based on wages paid for work performed for other covered employers, if otherwise qualified. Any benefit payable based on employment with the employer prior to the discharge shall be charged to either the fund's balancing or administrative accounts. There is no overpayment as a result of this decision.

Dated and mailed August 24, 1999
vaughla.urr : 145 : 5 MC 605.07 MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ credited the employe's testimony that she had permission to leave early on each occasion that she did so. He indicated that he perceived her as somebody who was making an effort to get to work. He believed that she cared about her job, but because of her family situation she had a difficult time getting to work. The commission does not disagree with the ALJ's credibility determination. However, the employe simply failed to establish that more than half of her absences were for valid reasons. She has failed to demonstrate that she could not have complied with the employer's attendance policy, and under the circumstances, the commission must conclude that her discharge was for misconduct connected with her work.


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