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


FRANK E MC LEOD, Employe

GORDON FLESCH CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603437MW


An administrative law judge for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employer.

Wis. Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on June 2, 1999, the last day on which a timely petition for review could have been filed was June 23 1999. The petition for review was postmarked June 24, 1999. It was received June 28, 1999.

The commission remanded this matter to the department for a hearing on the question of the timeliness of the employer's petition. At the hearing the employer's agent testified that she personally prepared the petition and mailed it from a United States Postal Service box prior to 5:00 p.m. on June 23, the last scheduled pick-up of the day. This testimony establishes that the petition was placed into the postal stream in time to receive a timely postmark, and the employer's agent had no control over what happened to it after that point.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has shown probable good cause that the reason for having failed to file the petition timely was beyond its control, within the meaning of Wis. Stat. § 108.09 (6)(a). The employer's petition is accepted.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a company engaged in the sale and service of copiers and fax machines, as a field service technician during two separate periods of employment, the most recent being from December 7, 1998 through March 9, 1999 (week 11).

The employe was tardy for work on December 16, 1998, January 5, 1999, and January 14, 1999. On January 26, the employe was issued a one-day suspension for tardiness and was told that if the problem continued he would be subjected to further discipline, up to and including discharge.

The employer sent the employe to Madison to attend training sessions from February 8 through 19. Prior to this training the employer advised the employe that being late for training would not be tolerated. However, the employe was late for training on three occasions. The employer did not learn about these tardies until March 4, at which point it received a report from the office where the training was conducted. When asked about the three days in question, the employe acknowledged he had been late and indicated he had overslept.

The employe was discharged on March 9, 1999, as a result of his poor attendance. The issue to be decided is whether the employe's discharge was due to misconduct connected with his employment.

In Boynton Cab 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 court said, in part, as follows:

". . . the intended meaning of the term `misconduct' . . . 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 employe, 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 employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute."

The employer contended that the employe's repeated tardiness evinced misconduct. The commission agrees. In January of 1999 the employe was suspended based upon his poor attendance and was warned that further tardiness could result in his discharge. He was then specifically talked to about the need to be on time during his training in Madison and advised that late arrivals would not be tolerated. In spite of these specific warnings, the employe was late for his training sessions on three separate occasions because he overslept. The employe did not appear at the hearing to offer any explanation for his actions and, based upon the evidence in the record, the commission believes his conduct evinced a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 11 of 1999, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 16 through 23 of 1999 and week 27 of 1999 in the total amount of $2403, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The petition for review is accepted. The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 11 of 1999 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,403 to the Unemployment Reserve Fund.

Dated and mailed November 9, 1999
mcleofr.urr : 164 : 1   MC 605  PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of witness credibility, but is as a matter of law.

cc:
CAROL WEIDINGER
C/O R E HARRINGTON INC


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