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


TIMOTHY M BOEHME, Employe

DIAMOND TRANSPORTATION SYSTEM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607022RC


On September 3, 1998, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe filed a late request for hearing, which ultimately was found to have been late for a reason beyond his control. Hearing on the merits was held on November 9, 1998 in Racine, Wisconsin before a department administrative law judge. On November 18, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for review of the adverse appeal tribunal decision; by February 9, 1999 order, the commission remanded the matter for additional hearing, which was held on March 8, 1999. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately seven months as a dispatcher for the employer, a truck line. The employer discharged the employe on July 30, 1998 (week 31), for excessive absenteeism. The issue is whether the employe's absenteeism was misconduct for unemployment insurance purposes; the commission concludes that it was not, and so reverses the appeal tribunal decision.

There is no question but that the employe had an unacceptably high rate of absence. He was absent due to illness on January 12, March 12-14, April 16, 17, and 20, June 11 and 12, and July 23 and 30. In addition, the employe took personal leave (due to hospitalization) June 22 through 27. This is seventeen absences in only seven months of employment.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. There are two prongs to this definition: the conduct in question must be both intentional and a substantial disregard of the employer's interests. There is no question but that the employe's rate of absence meets the latter prong. Based upon the evidence the employe presented at both the original hearing and the remand hearing, however, it cannot be concluded that the employe's absences were intentional. The employe's June 22-27 absence was due to hospitalization for depression. Most of the employe's other absences also were due to depression. The employe would not report to work because he did not think he could "face the people coming in." On some days, the employe was unable even to get out of bed. During the time period in question, the employe's physician was still in the process of ascertaining the proper dosage of the employe's medications, which means that there would be times when the employe's medications were not fully effective. Most of the employe's absences were due to his depression, finally; those few that were not, were due to a sinus infection/flu the employe had.

As indicated above, a finding of misconduct requires that the conduct in question be intentional on the employe's part. No such finding is allowable here, given the employe's medical condition during his employment with the employer. The commission therefore finds that, in week 31 of 1998, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 31 of 1998, if he is otherwise qualified.

Dated and mailed April 16, 1999
boehmti.urr : 105 : 1  MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's basis for reversal was the employe's medical evidence, evidence the administrative law judge did not have before him when issuing his decision. The commission's reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge.


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