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


DARYL L KAUFMAN, Employe

TLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604166MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for as a mechanic for a trucking company for two years. He was suspended for one week from May 24 through 28, 1999 (week 22.)

The employe called the employer on May 21 to give notice of lateness and possibly absence. The employer called back and inquired about his reasons for the absence. The employer was suspicious of the employe's absences because he had been talking about a side job he was working where he made good money. The employe said it was personal and he would not discuss it. The employer suspended the employe for one week as a result.

The issue is whether the employe's suspension was for good cause.

The burden for showing other good cause for a suspension is lower than that for misconduct. In Voeltner v. Consolidated Freightways Corp. of Delaware, Hearing No. 91-400173 AP (LIRC 5-5-92), the commission stated that, while "other good cause" is a lower standard than misconduct, yet "some blameworthy conduct must be shown on the part of the employe."

The employer is entitled to ask for an explanation for absences so that it can evaluate whether the absence is for a valid reason or not. While the employe need not have given a lot of detail, simply saying it was personal was insufficient. The employe should have given a more detailed account of his reason. The employer had reason to believe the employe might have been working another job and it asked for a more detailed reason to satisfy itself that the absence was a valid one. The employe was at fault for not supplying a reason following this reasonable request. The commission concludes that this suspension was for good cause.

The commission therefore finds that in week 22 of 1999, the employe's employment with the employer was suspended as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employe was paid benefits in the amount of $297 for week 22 of 1999; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits in week 22 of 1999. He is required to repay the sum of $297.00 to the Unemployment Reserve Fund.

Dated and mailed January 27, 2000
kaufmda.urr : 178 : 1  MC 676

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding credibility prior to reversing. The commission reached a different legal conclusion when applying the law to the facts rather than reaching a different assessment of witness credibility or demeanor.


NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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