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


JOSHUA B VOIGHT, Employe

SCHREIBER FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002877WR


On July 24, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was for misconduct connected with his employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on August 11, 1999 in Wisconsin Rapids, Wisconsin before a department administrative law judge. On August 13, 1999, the administrative law judge issued an appeal tribunal decision affirming 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 approximately a year and eight months as a general laborer for the employer, a cheese processing business. His last day of work was July 1, 1999; the employer discharged him in the following week (28 of 1999), and the issue is whether that discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employer's work rules require that an employe have an attendance failure rate of no more than four percent. On December 28, 1998, the employe received a verbal warning for unsatisfactory attendance. Specifically, the employe had an attendance failure percentage of 4.39. This was due to eleven instances of absence due to illness, one instance of tardiness, and four instances of leaving work early, all of which occurred between February 13 and December 23, 1998.

The employe received a written warning on January 27, 1999, following an absence due to illness on January 25. The employer's four percent policy concerns an employe's attendance record for the previous twelve months. The employe's attendance failure percentage as of the January 25 failure was 4.79.

The employe received a second written warning on March 2, 1999, following an instance of leaving work early on February 11, 1999. The employe had been working in the employer's enzyme-modified cheese section; he inhaled some airborne agent and as a result became unable to breathe. This incident was verified by the employer's human resources administrative assistant.

The employe's next attendance failure was on July 2, 1999, when the employe was absent due to fatigue and stress. His attendance failure percentage at this point was 4.20, and the employer discharged him the following week.

Misconduct for unemployment insurance purposes is the substantial and intentional disregard by an employe of standards an employer reasonably may expect of its employes. Certainly, a certain level of attendance is something an employer reasonably may expect of its employes, and the employe's rate of attendance failure in 1998 arguably does not meet such expectations. There are several reasons in this case why, however, the employe's overall record of attendance is not misconduct. First, the employe significantly improved his attendance in his last several months of employment. Recent good attendance can overcome an earlier, poor attendance record. See Smith v. Healthcare Services Group, Inc., Hearing No. 97603041MW (LIRC 8-14-97). Second, the employe had a doctor's excuse for one of his October 1998 absences due to illness. An absence due to illness, however, is not a failure for which any blame is attributable to an employe. Third, the employe's February 11 attendance failure also is one for which no blame whatsoever is attributable to the employe. He had to leave work early, after inhaling chemicals at work which made him unable to breathe. Fourth, even that February warning indicated that the next step in the employer's corrective process would be suspension of the employe. The employer did not abide by this provision, though; instead, it went straight to discharge upon the employe's next attendance failure. Finally, an attendance policy such this one can result in multiple penalties for the same offense. For example, the employe's verbal warning, two written warnings, and discharge all considered the employe's admittedly poor attendance record in the last half of 1998. This was excessive.

For these reasons, the commission does not believe the employe's attendance record constitutes misconduct for unemployment insurance purposes. The commission therefore finds that, in week 28 of 1999, the employer discharged the employe but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance as of week 28 of 1999, if he is otherwise qualified.

Dated and mailed December 28, 1999
voighjo.urr : 105 : 1 MC 605.09 MC 688.1

/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 did not fully credit the employe's claims of illness for many of his absences in the last half of 1998. The employe did not have specific recollection of many of the absences, and only testified generally that they were due to the flu or flu-like illnesses. The hearing in this case was in August of 1999, and it is understandable that a witness would not necessarily remember the specific nature of an illness which caused him or her to miss work almost a year earlier. At least one of the instances of absence was documented, however, and even if some of the 1998 absences were not for a valid reason, the employe's excellent 1999 attendance record outweighs those failures.

PAMELA I. ANDERSON, COMMISSIONER, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. We consulted with the administrative law judge who did not believe that most of the employe's absences were for valid reasons. The employe testified that the hearing that he was absent on Friday, July 2, 1999. "I did notify the employer that I was going to be absent. I would say it was more-or-less fatigue. I was feeling warn out and stressed." The employe had a pattern of absences just before or after the weekend or vacation.

For these reasons, I would affirm the appeal tribunal decision.

_______________________________________
Pamela I. Anderson, Commissioner

cc: SUSAN HUBER
HUMAN RESOURCE ADMIN ASST
C/O SCHREIBER FOODS INC


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