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


PATRICK J QUINN, Employe

LEACH CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400010OS


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 48 of 1998, if otherwise qualified.

Dated and mailed November 3, 1999
quinnpa.usd : 145 : 7 MC 605.07 MC 605.093

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employer has an attendance policy which is posted on Company bulletin boards. The employe was familiar with the policy, which provides that the employer may excuse an absence under specific circumstances. The circumstance which seems most appropriate in this instance is whether this was a bona fide emergency which was verified with the employe's supervisor and with the assistant director of plant operations. The employer asserts that the employe's attendance was very poor. The commission agrees. The employe had poor attendance and knew or should have known that his job was in jeopardy as a result. However, on the final occasion, the employe had been called away to assist his father who was in an accident. The employe specifically asked the human resource manager for permission to leave. He was granted that permission but informed that he must provide paperwork. The employe then asked what type of paperwork was required, and was told to "just bring back something." The human resource manager was aware that he was on the last disciplinary step for absenteeism but he was not informed at that time that the only thing which would be sufficient would be a report from a police officer or a state trooper. Thus, the employe's actions in failing to provide notice which the employer considered sufficient cannot be considered misconduct connected with his work.

Further, the employer suggests that the employe's reason for leaving work did not coincide with the employer's definition of an emergency. However, the employe was not aware, at the time he received the call, of the exact nature of the accident.

The employer further asserts that the employe was simply not a credible witness, and suggests that the employe was, at the very least, embellishing his father's situation. Assuming that the employer is correct, the human resource manager specifically testified that the employe's alleged dishonesty was not a factor in her decision to discharge him. He was discharged for his attendance and for his failure to bring in an adequate excuse for his final absence. The employe did ask permission to leave work, and he did provide a letter from his mother. He was not specifically told what would suffice, despite asking. The employe did offer to bring in a slip from the radiator shop, however, he was told that he needed to provide a police report or a state trooper's report. Under the circumstances, the commission cannot conclude that the employe's actions with regard to his final absence demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.


PAMELA I. ANDERSON, Commissioner (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. I found that the employe was not a very credible witness. I believe the employe lied to the employer when he told the human resources manager that his dad hit a deer and went into a ditch. That his dad and the state trooper called his mother and he had the deer head in the car as proof. He was leaving work under 3E of the attendance policy that provides "Emergencies that may arise and can be verified with his supervisor and the Assistant Director of Plant Operations." The employer's policy on attendance listed acceptable excuses in various places as "written excuse from doctor's office, lawyer's office, courthouse, social worker, receipt from emergency room or hospital." There is no place in the policy that would lead the employe to believe that a note from his mother thanking the employer for letting him off work is an acceptable excuse.

The union president and chief steward talked to the employe and suggested he bring in a contact slip from the State Trooper. The employe then asked if he could bring in a slip from the radiator shop. He was told no. The chief steward suggested that he bring in the deer tag but then the employe said that the deer ran away. The employe testified that he was entitled to half a day every month for personal business and a whole day every other month for personal business. The human resources manager testified, "In regard to whether the policy says the employe is entitled to a day off every other month for personal business and it will not be held against him for disciplinary purposes, no. The policy states if you have in excess of two days whole days absent, unexcused, in one particular month, you are going to get written up for it. If you have two short days, which would be missing more than one hour of time absent in one particular month, unexcused, you are going to be under discipline."

The human resources manager also stated "In regard to 3E of the attendance policy, the fact that someone needs their car towed is not an emergency in the company's view. Emergencies involve life threatening situations. An emergency is going to be a death, or serious illness. A house fire is an emergency. I would never accept a note from someone's mother as an acceptable excuse for an emergency. I have never accepted a note from someone's mother as an excuse in any situation." She continued "The employe did not ask me what kind of paperwork would be acceptable on 11/17. When he told me about the 11/17 incident after the fact, he told me his dad and the state trooper contacted his mother."

I believe that given this employe's extremely poor attendance record, that leaving in a non-emergency situation and not getting paperwork from the state patrol or other law enforcement agency that there was an accident was enough to reach misconduct. I do not believe that the employe could have gotten a legitimate excuse from a radiator place because the employe testified that the accident put a hole in the radiator. It overheated and fried the motor. The employe stated "My dad's fried motor was an expensive repair. More than $500. He had to buy another car. He never filed an insurance claim. In regard to whether he ever reported it to the police, the police were never even there. That's not a big deal. Dad drives Hyundai's like that for a few years until they puke. That's why he keeps buying Hyundai's..The car was on its last leg." I do not believe his father had his car repaired if it was in fact in an accident with the deer.

For all these reasons, I would reverse and find misconduct connected to his employment.


__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY DANIEL G VLIET
DAVIS & KUELTHAU SC


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