BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

CRAIG I HENSBERGER, Employe

Involving the account of

LARSEN FACTORY SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89400950GB


On April 28, 1989, an Appeal Tribunal issued a decision, reversing a Department Deputy's Initial Determination, and holding that in week 9 of 1989, the employe was discharged for misconduct connected with his employment, within the meaning of sec. 108.04(5), Wis. Stats., and denying benefits. On May 11, 1989, the employe timely filed a petition for review.

Based on applicable law, records and evidence in this case, and after consulting with the Administrative Law Judge who held the hearing, for her impressions of credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during about four seasons as a general laborer and crew leader for the employer, a food processing company. At the end of each season he was laid off indefinitely. In November 1988 he was again laid off indefinitely. He was not rehired until February 1989. His last day of work was March 2, 1989. On March 3, 1989 (week 9), he was discharged allegedly for violation of the employer's work rules concerning excessive absenteeism and tardiness.

The issue for decision in this matter is whether the employe was discharged for misconduct connected with his employment. Under Wisconsin Statutes, if a worker has been discharged for misconduct connected with employment, he or she is ineligible for benefits from the employer's account and is ineligible for other benefits until working in seven later weeks and earning 14 times the applicable benefit rate.

The employer's attendance rules proscribe tardiness and state that repeated tardiness will result in disciplinary action. The rules further provide that personal absence without permission or notification and tardiness are minor offenses. The progressive penalties for minor offenses are a written warning for a first offense and second offense and a 24-hour suspension or discharge for a third offense. Repeated or prolonged unexplained absence and leaving without permission are major offenses, the penalties for which are written warning and up to five days of suspension for a first offense and 24-hour suspension and possible discharge for a second offense.

The employe was rehired to begin work for his last term of employment on Friday, February 24, 1989 (week 8). On Wednesday, February 22, a representative from the employer's office contacted him and informed him that work was available Friday night and Saturday 8:00 p.m. (February 24 and 25, 1989) and the following week on the night shift. The employe repeated the instructions to the representative saying, "I'm supposed to work Friday night and the following morning." The representative confirmed that was correct. On Friday, February 24 he reported for work at 6:00 p.m., the scheduled starting time for the night shift, but was informed he had been scheduled for the day shift beginning at 6:00 a.m. The employer issued him a "final minor warning" for absence without permission for his failure to report for work at 6:00 a.m., February 24. However, this absence was for a justifiable reason, i.e., the employer's instructions to report for the night shift, not the day shift.

On March 2, 1989 (week 9), the employe was scheduled to report for work at 7:00 a.m. He did arrive at 7:00, but immediately left to go home for his hard hat and locker keys which he had forgotten at home. He live a couple blocks from the cannery. He then reported for work at 7:30 a.m. He needed his locker keys in order to retrieve his work boots, painting suit and old shirt from his locker. The employer took into account the tardiness, the failure to report on February 24 and also took into account his attendance record in his previous term of employment in 1988 when it discharged him. The failure to report to work on February 24 was not a culpable act as the employe was merely following the employer's instructions. The single negligent act of tardiness, standing alone, would not constitute negligence of such degree as to show a wilful and substantial disregard of the employer's interests.

The employer contended it took into account the 1988 attendance record to substantiate its finding of misconduct, i.e., 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 employe's duties and obligations to his employer. The employe's prior attendance record may have been unsatisfactory to the employer, but his layoff in November 1988 was an indefinite one and severed the employment relationship for purposes of unemployment compensation. The past should not be held against him in determining benefit eligibility. In view of that, there is nothing more than the single instance of tardiness because he had to return home for his locker key, and his actions on that occasion were not sufficiently severe to evince a wilful or substantial disregard of the employer's interests. Moreover, at the time of rehire the employe was neither advised nor warned that his prior acts, if repeated, would be considered in invoking future discipline. See Pabst Brewing Co. v. DILHR and Gerald Pate, Dane County Circuit Court, Case No. 149-159 (August 9, 1976).

The Commission therefore finds that in week 9 of 1989, the employe was discharged, but not for misconduct connected with his employment, within the meaning of sec. 108.04(5), Wis. Stats.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified. He is not required to repay the sum of $953 to the Unemployment Reserve Fund.

Dated and mailed November 29, 1989
115 - CD1004 MC 688  MC 688.1

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner


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