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

ANGELA HAYES, Employe

SAINT JOSEPHS HOSPITAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603567MW

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, if otherwise qualified.

Dated and mailed January 27, 2000
hayesan.usd : 132 : 1  MC 665.01 MC 665.04  MC 688.1 MC 699.05 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from her employment but not for misconduct connected with her work. The employer maintains that the employe's use of profane language amounted to misconduct connected with her work. However, the employe was not discharged for using profane language. The employe's separation occurred because the employe did not return leave of absence forms sent to her by the deadline set by the employer. The employe was discharged for her unexcused absences, not for profane outburst.

The commission is not disregarding the evidence of the employe's outburst, clearly, that led to the employe leaving work. The fact remains that the employer discharged the employe for unexcused absences. The commission disagrees with the employer's contention that the department adjudicator or the administrative law judge framed the discharge issue. The employer framed the discharge issue by virtue of its April 26, 1999, letter to the employe, which informed her that she was discharged, and the reason for that discharge.

The employer also argues that the administrative law judge erred in finding that the employe had not been warned about her excessive absences. First, the administrative law judge did not find that the employe had not been warned about excessive absences. The administrative law judge found that the employe had not been warned that her job was in jeopardy due to such absences. Second, the administrative law judge found as a fact, based on the employe's testimony, that she did not receive the March 31, 1999 letter. Therefore, the employe did not knowingly disregard the employer's interests by remaining absent from her employment. Finally, contrary to the employer's assertion, the commission cannot consider the employer's April 26, 1999 letter of discharge to constitute a "warning." For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: ATTORNEY LEONARD ADENT
LAW OFFICES OF ADENT & HASSIN

ATTORNEY KATHLEEN M OTOOLE
MICHAEL BEST & FRIEDRICH LLP

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