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

DOROTHY E LIPSEY, Employe

ST ANNES HOME FOR THE ELDERLY MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608321MW

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 most recently worked for about nine months as a CNA for the employer, a long-term care facility. Her last day of work was November 8, 1999 (week 46), when she was discharged.

The issue which must be decided is whether the employe's discharge was for misconduct connected with her work.

Under the employer's policy, a single absence is considered one occurrence. Three consecutive scheduled days away for the same reason, due to illness are one occurrence with a doctor's excuse. Certain absences will result in two occurrences for a single day, on holidays, for example, holidays and weekends. Two no call/no shows will result in discharge. One occurrence and the employe will have a policy review, two and the employe will have verbal coaching, three a written warning, four a second written warning, five a final written warning and a one day unpaid suspension and six will result in termination. This is within a moveable three month period, so that the end of April eliminates January, the end of May eliminates February and so on. Three suspensions for absences, being late or breach of policy in a year will result in termination. Reaching five occurrences twice will eliminate the moveable three-month period. Prior absences go off the employe's record if there is improvement, for example, no absences for a month. The employer has a separate tardiness policy. Tardiness was not considered in the decision to discharge the employe.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

In only about nine months, the employe was absent because of transportation problems on two occasions and because of childcare problems on four occasions. In addition, she was absent because she was ill or because her child was ill eight times and twice for family emergencies. Absences for valid reasons, such as the illness of the employe or her child, do not amount to misconduct for unemployment insurance purposes. However, the employe was also absent because of problems with childcare and transportation. It is the employe's responsibility to arrange for transportation to work, and to find reliable childcare. While the employe's last absence was for a valid reason, her attendance record as a whole demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 46 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 46 of 1999 through week 10 of 2000, amounting to a total of $2,907.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 beginning in week 46 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. She is required to repay the sum of $2,907.00 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
lipsedo.urr : 145 : 7 : MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ thought that the employe did suffer from headaches. For one thing, she immediately knew who her doctor was and what medication she was taking. He further noted that the employer trusted her, for example, it did not think she was manufacturing an excuse when she mentioned the fire. Further, she would volunteer to work extra hours, which demonstrated some regard for the employer. While the commission does not doubt that the employe suffered from headaches, the commission notes that she was often absent because of childcare or transportation problems. While there can always be unforeseen circumstances which cause childcare problems, in this case the employe was aware that she did not have reliable childcare.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]