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


GAYNELL A STINSON, Employe

QUALITY CONTROLLED SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003819MD


On August 20, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse initial determination, and hearing was held on October 27, 1998 in Madison, Wisconsin before a department administrative law judge. On November 3, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked several months as a market research interviewer for the employer, a data collections business. She worked four hours per day, Monday through Friday. Her last day of work was May 7, 1998 (week 19).

On May 8, 1998, the employe telephoned the employer to state that she would not be at work because her brother had been murdered and she was going to the funeral out of state. Her return to work date was not clearly defined at the time although, according to the employer, the employe would not be in to work for "the week." The employer did not hear from her again until May 18, 1998, when she called to find out about her schedule. Her supervisor spoke with her later that week, at which time he told her that she would not be put back on the work schedule because she had not provided notice to the employer during the course of her absence.

The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment insurance. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

The employer contended that the employe had voluntarily terminated her employment. The commission disagrees. The employe contacted the employer after she returned to the state because she had not formed any intention of quitting her job. It was the employer that severed the employment relationship by refusing to return her to the work schedule.

Having determined that the employe was discharged from her employment, it must determined whether the discharge was for misconduct in connection with that employment. In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the Supreme Court of Wisconsin said, in part, as follows:

(M)isconduct . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in 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 employee's duties and obligations to his employer.

The employe contended that her absence did not constitute misconduct in connection with her employment. The commission agrees. On or about Friday, May 8, the employe told the employer she would be absent indefinitely, and the employer's personnel interpreted the employe's remarks to mean that the employe would not be in for "the week." This phrasing, which is from the employer's witness, is ambiguous and lends credence to the employe's claim that she thought she had given the employer notice for her absence in week 20, May 11-16. At worst, the employe's failure was due to a misunderstanding or miscommunication between the employe and the employer as to the length of time the employe would be absent. This simply does not constitute the intentional and substantial disregard of an employer's interests, which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 21 of 1998, the employe did not voluntarily terminate her work with the employer, within the meaning of Wis. Stat. § 108.04 (7)(a). The commission also finds that, in week 21 of 1998, the employer discharged the employe but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employe is eligible for unemployment insurance, if she is otherwise qualified.

Dated and mailed April 27, 1999
stinsga.urr : 105 : 3 MC 605.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge noted that all parties had some problems recollecting the events in question. She specifically stated, though, that she found the employe to be a credible witness. The commission likewise does not find any of the witnesses not to have been credible; rather, the employer's testimony as to the length of time the employer thought the employe would be absent, compels the conclusion that there was simply a misunderstanding between the parties as to how long the employe would be away for the funeral and related matters for her murdered brother.

The dissent rests its case on the inconsistencies in the employe's testimony, arguing for example that the employe either spoke with her supervisor or with the receptionist. It is unclear to the majority why the employe could not have spoken with both the supervisor and the receptionist, however. More importantly, inconsistencies in testimony can result from different causes. They can result from attempts at evasion by the witness; they also can result from simply not remembering the exact sequence of events for the time period covered by the testimony. The dissent, who was not in a position to observe the credibility of the witnesses, finds the employer's witnesses credible and the employe's witness not credible. The administrative law judge, who was in a position to observe the credibility of the witnesses, found all the witnesses credible but noted that all parties had some problems recollecting the events in question. The administrative law judge did not believe, and neither does the majority, that the employe's problems of recollection were due to evasiveness or dishonesty on the employe's part. Rather, the majority has to conclude that some tolerance and understanding of the inconsistencies is in order as having been related to the sudden and unexpected tragedy of the murder of the employe's brother.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Mr. Klein testified "She had missed quite a bit of work for various reasons. We had talked about her making sure she contacted us." The employer policy was a no- call/no-show for two days was a quit. Klein testified "she did not make arrangements with me not to have to call in and let us know what was going on." Klein did not expect her to report on Saturday but he expected her back on Monday, May 11.

Mr. Baumann testified "On Friday 5/8 the employe called in and spoke to Mr. Klein. Mr. Klein told me. She said she would not be in for the week because of her brother's death. I asked Mr. Klein is she going to be in on Saturday. He said he did not think so. I asked Mr. Klein when he expected the employe to return. He said on Monday."

The employe gives contradictory testimony. At one point she says she called in on 5/7 right after she got the call about her brother's death. She told one of the receptionists that her brother was murdered and I don't know when I'll be back. Then she testified "Only the funeral was open-ended after Pete told me I had to let them know. At that time, I did not know what needed to be done because of the nature of the death and violence involved. I did not know what was involved in getting everything situated so "I told him I would call from my parents." She then says, "No one was in a position to allow me to call and my mother had told me she was putting restrictions on the phone. I come from a family of 10. There were a number of other relatives and my mother is ill. We all agreed not to call long distance."

The employe can't have it both ways, either she talked to Pete or the receptionist. Since Klein testified he talked to and he told Baumann that he had talked to her the same day, I believe the employe talked to Klein and promised to call from her parents. The employe did not do that. I do not believe that the employe called in on Monday , May 18. The first that Baumann heard from her was May 21 which was a Thursday. Baumann testified "She said she was back in town and ready to return to work. I said I'd expected to hear from her on Monday, and I'd not heard from her. I said since she had not reported in to work for that period of time we considered that quitting. The employe said she had talked to Mr. Klein and she'd been out of town for a funeral. I said Mr. Klein had expected her to return on that Monday. I told her she knew when she was going to be out she needed to report in for work. She responded she was not able to use a phone where she was in Michigan, that her mother had so many family members there she could not afford all the long distance charges that could have been made, and that was why she was not able to call and let me know when she was going to be coming to work."

The employe was gone nine work days and called on the tenth to report she was ready to come back to work. She had been warned by the employer in the past that she needed to contact them when she was going to be absent and let them know what was happening so they could schedule. She testified she promised to call from her parents but she did not because she could not use her mother's phone. She did not bother to check out other possibilities including pay phones. She knew that the employer considered two days of no-call/no-show to be a quit. I believe that this case can be a quit or a discharge for misconduct case. Based on all the circumstances including the fact that the employer believed she quit, I would find that the employe quit not within any of the exceptions that allow for the immediate payment of benefits and require the employe to requalify for benefits.

__________________________________________
Pamela I. Anderson, Commissioner

cc: QUALITY CONTROLLED SERVICES


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