BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

WALTER J READER, Employe

Involving the account of

TREK BICYCLE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-604160 WT

The Department issued an Initial Determination in this matter on June 7, 1989, which held the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the adverse determination, which was held July 25, 1989 in Watertown, Wisconsin, before Administrative Law Judge Stephen Koenig. On July 28, 1989, the Department issued an Appeal Tribunal decision reversing the Initial Determination and holding that the employe was discharged for misconduct. The employe timely petitioned for Commission review of the adverse Appeal Tribunal decision, and the matter now is ready for disposition by the commission.

Based on the applicable law, records, and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked just under four months for the employer, a bicycle manufacturing concern, as a packer/shipper in the employer's warehouse. The employer discharged the employe on May 19, 1989 for excessive absenteeism. The issue is whether the employe's attendance record was in such wilful disregard of the employer's interests as to constitute misconduct within the meaning of section 108.04(5) of the Statutes.

The employer's attendance policy provides employes five excused absences in a 12- month period. The policy also provides a progressive discipline scheme for "occurrences," or unexcused absences. An absence from work constitutes an occurrence, as does two lates. The first two occurrences result in verbal warnings, the third in a written warning, the fourth in a three-day suspension, and the fifth in discharge from employment.

The employe was absent February 6-10. He had the flu. He saw a physician on February 7 and received a medical excuse for February 7 through 10. The employer treated the employe's absence on the 6th as unexcused, and the remainder as one excused absence. The employe was absent March 4. The defogger on his car did not work and an ice storm on that date prevented him from going to work. The employer treated this absence as the employe's second occurrence.

The employe, a widower, has children ages three and six. His children were ill on March 18 and 23. The employe was absent on those dates because of their illness. The employer treated these absences as the employe's second and third excused absences. The employe was absent April 1, but had no excuse therefor. The employer treated this absence as the employe's third occurrence.

The employe was absent April 10, due to his children's dental appointments. The employer approved in advance the employe's absence on this occasion, and treated it as the employe's fourth excused absence. The employe was late to work April 24. His children had been up ill most of the previous night, and the employe subsequently overslept. The employer treated this as the employe's fourth occurrence. The employe was also late on April 25; the employer treated this as the employe's fifth excused absence.

The employer suspended the employe's employment May 9-11, because of the employe's unacceptable attendance record. On May 18, the employe was absent because the previous evening the water pump on his automobile had failed, and he was unable to repair it in time to report to work on May 18. At this point, the employer discharged the employe pursuant to its progressive discipline scheme; the employe's latest absence was his fifth occurrence, or unexcused absence.

The above recitation of the employe's numerous absences, and the reasons therefor, illustrates at least two points. It illustrates that the employer had a perfectly legitimate reason for discharging the employe. An employer should be able to rely upon its employes to perform their work for the employer to a greater extent than this employe. The recitation also shows, however, that the employe had a legitimate reason for the absence on May 18. Where, as here, an employer has discharged an employe following an attendance violation occurring after a previous warning or suspension, the Commission believes there must be some fault attributable to the employe for the absence occurring after the discipline. The Commission cannot ascribe fault, however, to occasional automobile failures. The Commission therefore finds that the employe was discharged from his employment with the employer in week 20 of 1989, but that the discharge was not for misconduct within the meaning of section 108.04(5) of the Statutes. The employe thus is not obligated, by virtue of his week 20 discharge from employment with the employer, to repay the $546 in unemployment benefits he received in weeks 21 through 23 of 1989.

DECISION

The Appeal Tribunal decision is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified.

Dated and mailed November 8, 1989
105 : CD6059 MC 605.09 MC 688.1

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority and I dissent.

I agree with the Administrative Law Judge and would accept his findings of fact and conclusions of law as my own.

/s/ Pamela I. Anderson, Commissioner

cc: TREK BICYCLE CORPORATION

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