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


MICHAEL A ROWE, Employe

TRUSERV CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002104MD


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

FAILURE TO APPEAR

The employer timely appealed an adverse initial determination and a hearing was scheduled for May 5, 1999, at 2:00 p.m. in Janesville, Wisconsin. The employe appeared at the hearing but the employer failed to appear. As a result, the appeal was dismissed on May 6, 1999. Within 21 days, the employer filed a request for a new hearing on the merits. The appeal tribunal decision was set aside for further consideration of that request. On June 23, 1999, an Appeal Tribunal Decision was issued which denied the employer's request for hearing and reinstated the May 6, 1999, Appeal Tribunal Decision which dismissed the appeal. As a result, the initial determination remained in effect. The employer filed a timely petition for commission review. As a result, the commission remanded this case for further testimony with respect to the employer's reason for its failure to appear.

The commission finds that the employer had good cause for failing to appear at the hearing. The employer's witness was not at work because her only son died unexpectedly. The employer's witness was taking an unspecified amount of time off. On the day of the hearing it became apparent that the employer would not be able to appear, and the employer's agent called the hearing office at around noon to inform it that the employer would not appear. The hearing office was unable to reach the ALJ to inform him of this.

A party who fails to appear at a scheduled unemployment insurance hearing is entitled to have that hearing rescheduled if he or she shows good cause for the failure to appear. The death of one's child without question meets this standard; the commission therefore finds that the employer had good cause, within the meaning of Wis. Stat. § 108.09(4), for its failure to appear at the hearing which was scheduled for May 5, 1999.

QUIT OR DISCHARGE

The employe worked in maintenance for about nine months for the employer, a hardware distributor. His last day of work was March 5, 1999 (week 10).

The employe failed to report for work on March 7 (week 11) or thereafter. The employer has a policy which provides that after three consecutive days of no call/no show a worker will be considered to have quit. The employe was aware of this rule. On March 12, the employe contacted the employer indicating he had received the employer's termination letter, and asking why he had been discharged. The employer indicated that he had been no call/no show for three days.

The issue which must be decided is whether the employe quit his employment or if he was discharged by the employer. If it is determined that the employe quit, it must also be determined whether his quitting was for any reason which would allow for the immediate payment of unemployment insurance benefits. If it is determined that he was discharged, it must also be determined whether his discharge was for misconduct connected with his work.

The employer contended that the employe quit his employment. The commission agrees. The employe was absent for three consecutive days, without giving notice of his absence. While he contended that he had permission from the warehouse superintendent to be absent, his testimony was not credible. He asserted that he asked for the rest of the week off (March 7, March 8, March 9 and March 10) on March 7, because he was ill with the flu, and he knew that he would not be able to work on those days. He knew he would need that much time off because he could not get a doctor's appointment until March 10. The employe was also absent March 11, and admittedly failed to call in because he did not believe it would make any difference. He did not get a copy of the request for leave form that he claimed to have signed. The employer did not have a copy of such a form in the employe's file. The commission discussed witness credibility and demeanor with the ALJ who held the hearing on the merits. She indicated that the employe was not credible, and found it odd that he knew how many days he needed off, given he wanted the leave because he had flu.

The employe took five days off without notifying the employer of his whereabouts, despite the fact that he was aware that three days of no call/no show was considered a quit under the employer's policy. His actions were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes, constituted a quitting. The employe has not demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 11 of 1999, the employe terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employe was paid benefits in weeks 12 through 18 of 1999, totaling $732.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 11 of 1999, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $732.00 to the Unemployment Reserve Fund.

Signed by all 3 and issued 2/17/2000

Dated and mailed February 17, 2000
rowemi.urr:145:1 PC 712.5  VL 1001.09  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

With regard to the employer's failure to appear, the commission does not reverse the ALJ's determination based on a different impression of witness credibility and demeanor. The ALJ credited the testimony of the employer's witness with regard for her reason for failing to appear, however he determined the employer should have contacted the department to inform it the employe would not appear. Evidence adduced a the remand hearing which was not available to the ALJ when he made his decision demonstrated that the employer contacted the hearing office to inform the hearing office that the employer would not appear. However, the hearing office was unable to reach the ALJ and give him this message. The commission did discuss witness credibility and demeanor with the ALJ who held the hearing on the merits. She indicated the employe's testimony was not credible because some of his actions did not make sense, given his situation, for example reporting directly to work rather than meeting with his supervisor as directed. She also found it odd that he knew ahead of time exactly how long his flu would last.


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

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

cc: TRUSERV CORP


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