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

BARBARA A VARISCO, Employe

ADELMAN MAINTENANCE CORP OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607667MW

On November 3, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing, and hearing was held on November 22, 1999 in Milwaukee, Wisconsin before a department administrative law judge. On November 30, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately a year and a half as a telemarketer for the employer, a carpet, drapery, and furniture cleaning business. The employer discharged her on October 5, 1999 (week 41) for excessive absenteeism, and the issue for decision is whether that absenteeism was misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employe was absent approximately 60 days in the approximately nine months of her employment with the employer in 1999. She missed five days in January and five more days in May because of back pain, with doctor's excuses. She also missed 14 days of work in September and two in October because of back problems. The employe also missed work because of other illnesses, on March 9, 10, and 12, April 1 and 3, and July 27 and 28. These are valid reasons for absences but where, as here, an employe has a large number of absences for valid reasons, it is incumbent upon the employe to keep to a minimum absences for invalid reasons. This the employe did not do.

The employe had no explanation for absences on March 4, April 12, 15, and 22-24, July 6 and 9, August 31, and September 2. This is ten absences which cannot be considered to have been for valid reasons. Only the employe would know why she was absent. Also during this time period, the employe was scheduled to work on six Saturdays, and she only worked two of those times. This is four additional absences for which the employe did not have a valid reason. Finally, the employe conceded that two of her absences were without notice to the employer. This is almost the standard which, by itself, constitutes misconduct for unemployment insurance purposes: three absences without notice to an employer.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's attendance record easily meets this standard, given the number of absences without valid reason and number of absences without notice to the employer. The commission therefore finds that, in week 41 of 1999, the employe was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe was paid unemployment insurance in weeks 41 of 1999 through 10 of 2000, totaling $3,509.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault, it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 41 of 1999, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $3,509.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 14, 2000
varisba.urr : 105 : 1 MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission's reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge. The administrative law judge found that the employe's absences were not shown to have been for invalid reasons or without notice to the employer. The employe conceded, though, that two of her absences had been without notice to the employer. The employe also did not establish a reason for many of her absences and, as to those, the commission cannot consider them excused.

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