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


CLARENCE L WILLIAMS, Employe

GILMORE CONSTRUCTION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608402WK


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

TIMELY HEARING REQUEST

On October 20, 1999 the Department of Workforce Development (department) issued a UCB-16 Separation Notice (UCB-16) to the employer. The UCB-16 states that it should be returned to the department within seven days only if the information contained on it is incorrect. The employer's UCB-16 stated that the employer indicated that the employe was no longer working for the employer because he was discharged. Since the employer did not disagree with the statement contained on the UCB-16, the employer did not return the form to the department. The UCB-16 also states that an adjudicator would contact the employer shortly to discuss the separation. The adjudicator however was unable to reach the employer for additional information on the separation. Consequently, on November 4, 1999 the department issued an initial determination finding that the employe's discharge was not for misconduct connected with his employment. The last date to timely appeal the initial determination was November 18, 1999. According to the department, the employer's hearing request was received on November 24, 1999 and consequently found to be untimely.

The adjudicator handling the appeal testified before the ALJ regarding the timeliness issue. According to the adjudicator she "received a fax and considered it to be a response", on November 8, 1999. The adjudicator believed "it was a response and was considering redetermination based on the employer's faxed letter" but wanted additional information. (Synopsis page 3). Consequently, the adjudicator left a voicemail message on the employer's answering machine asking for specific information. This message was left on or about November 8, 1999, after the adjudicator received the faxed letter. The adjudicator gave the employer the standard 48 hours to respond. When the adjudicator did not receive a response from the employer she waited until a day before the appeal deadline to contact the employer again. The adjudicator left a voicemail message for the employer. The employer was out of town and did not return the phone call until November 24, 1999, by then the appeal deadline had expired.

Wis. Stat. § 108.09(2r) Hearing Request provides:

"That any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with the procedure prescribed by the department and is received by the department or postmarked within 14 days after the copy of the initial determination was mailed" . . . ."

Neither the adjudicator nor the ALJ treated the November 8 faxed response the employer sent as a hearing request; rather they each treated the letter as a response to the UCB-16 Separation Notice. The ALJ referred to the faxed letter as a "bona fide effort to respond to the notice from the department." After review of the record and faxed letter sent on November 8, 1999, the commission respectfully disagrees with the ALJ's finding and conclusion.

While the employer may have intended the November 8 letter to be a response to the UCB-16 Separation Notice, the employer sent the letter in response to the initial determination it received on or about November 4, 1999. Furthermore, the faxed letter clearly states that the employer contests the employe's eligibility by stating the employe should not be eligible for benefits from the employer's account based on his absenteeism. The commission therefore as a matter of law treats the November 8 letter as a hearing request. Furthermore, since the letter was received by the department within the 14 day appeal timeframe, the letter is a timely hearing request within the meaning of Wis. Stat. 108.09(2r). Accordingly, the appeal tribunal decision is reversed, the hearing provisionally held on the merits was therefore reviewed by the commission.

DISCHARGE FOR MISCONDUCT

The employe worked approximately one year as a masonry laborer for the employer, a masonry reconstruction business. The employe's last day of work was Friday, October 1 (week 40) at which time the employe completed his shift. The employe was discharged on October 7, 1999 (week 41) for absenteeism.

On October 5, 1999 the employe called the employer and spoke to Gary Gilmore, the president of the company. The employe explained that his daughter had chickenpox and he would not be in. At that time Mr. Gilmore informed the employe that his absences were out of control and that he better start thinking about his job. The employe did not call in on October 6 or October 7. The employer attempted to call the employe on October 6 at 4:30 p.m. The employer however was unable to reach the employe. On October 7, the employer called the employe at 6:40 a.m. but there was no answer. The employer left a message for the employe to call the employer. The employe never returned the call and did not report for work on October 7 but did appear to pick up his paycheck.

The employe admitted that when he spoke to the employer on October 5 regarding his absence he was told that his "job was in jeopardy and he better start thinking about it." The employer however did not fire the employe on October 5 as the employe contends. The employe explains he did not report to work on October 6 or 7 because he assumed he was discharged after his conversation with the employer on October 5. Even though the employe's last absence was for a valid reason, the employe's assumption that he was fired on October 5 during his conversation with the employer, was unreasonable. The employe admitted he just "assumed so" but never sought clarification from the employer. The commission expects employes to ascertain the status of the employment relationship under ambiguous circumstances rather than simply assuming a discharge occurred.

The employer offered evidence establishing numerous tardies and absences without notice by the employe beginning in Mid July, 1999 through October 7, 1999. The employer spoke to the employe three times about his tardiness during this time period and twice about his absenteeism. The employe admitted that he was often late and it was his fault. He believed it happened between three to five times during his employment with the employer. The employe explained however that he was tardy more than he was absent. He explained he was late once because he ran out of gas and had a flat tire. Once the employe was absent because his daughter and the daughter's mother were in a car accident and were injured. Once the employe had food poisoning and once he was absent because his brother was shot. The employe also admitted he left work early to attend night school but with the approval of the employer. The employe could not recall any other reasons for his chronic absenteeism and tardiness.

The issue for review is whether the employe's discharge is for misconduct due to his absenteeism. As mentioned, the commission finds that the employe should not have assumed that he was discharged on October 5, 1999 based on his conversation with the employer. It was the employe's obligation to ascertain the status of the employment relationship after listening to the employer's warning about his absenteeism problem. Reviewing the employe's overall attendance record, the commission concludes that the employer produced sufficient evidence to establish that the employe's chronic absenteeism was not improving despite warnings. Even though the employe's last absence was not blameworthy, there is sufficient prior blameworthy conduct in the employe's record to form the actual basis for the misconduct finding. The commission concludes that the employe's chronic tardiness and absenteeism, despite warnings, constituted an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employe.

The commission therefore finds that in week 41 of 1999 the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5). The commission further finds that the employe was paid benefits in the amount of $3,072 for weeks 42 through 52 of 1999, for which he is not eligible and to which he is not entitled within the meaning of Wis. Stat. § 108.03(1).

WHETHER THE RECOVERY OF OVERPAID BENEFITS MUST BE WAIVED

The final issue to be decided is whether the recovery of the overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c) provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e) departmental error is defined as an "error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, of for misinformation provided to a claimant by the department, on which the claimant relied."

The overpayment in this case results from the adjudicator and ALJ's failure to treat the November 8 faxed letter as a hearing request. The letter was received after the department's initial determination was issued and within the time deadline to appeal and request a hearing. The letter specifically states that the employe should not be eligible for any benefits based on his discharge for chronic absenteeism. The commission is unwilling to characterize this faxed letter as anything other than a hearing request for the reasons previously discussed. Had the department treated the faxed letter of November 8 as a timely hearing request, a hearing on the merits would have been scheduled and benefits may never have been awarded to the employe. The commission concludes that the department committed a departmental error within the meaning of Wis. Stat. § 108.02(10e), by failing to treat the faxed letter as a timely hearing request.

The commission therefore finds that the employe's receipt of benefits was the result of departmental error within the meaning of Wis. Stat. § 108.22(8)(c), thus requiring waiver of the $3,072 overpayment.

DECISION

The appeal tribunal decision is reversed. The employer is entitled to a hearing on the merits of the employe's eligibility for benefits. (1)  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 the employe has earned wages in covered employment equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred.

The commission further finds that the employe was paid benefits amounting to $3,072 for weeks 42 through 52 of 1999, for which he is ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission also finds that the employe's receipt of benefits was the result of departmental error within the meaning of Wis. Stat. § 108.22(8)(c), thus requiring waiver of the $3,072 overpayment.

Dated and mailed March 30, 2000
willicl.urr : 135 : 6   MC 605.01  PC 711  BR 335.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

Pamela I. Anderson, Commissioner, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent in part. My dissent involves the question of department error. The majority found that if the employer objects to benefit payment that is a request for hearing and an appeal. While I would have had no problem with the adjudicator checking with the employer to find if the November 8, 1999 response was an appeal, that is not what occurred. The employer did not consider the November 8, 1999 response as an appeal, she believed that the adjudicator should not have made a final decision until the employer had been contacted. Once the adjudicator's decision was made, it is unlikely the adjudicator will reissue the decision even if the employer submitted additional information.

Appeals or petitions for commission review are made in writing. Telephone appeals and petitions for commission review are not accepted. It is not reasonable to expect the adjudicator to always respond to a request for a party in a timely fashion once the decision has been issued because the adjudicator's primary job is to issue decisions within a federally mandated timeframe. There is a dispute on when the adjudicator called the employer back. The adjudicator testified she called the employer back on November 8 or 9 and gave the employer the standard 48 hour deadline to respond. The employer testified that the adjudicator did not call back until November 22 and the employer was out of town at that time. Even accepting the employer's version of the facts, I would not find department error.

Department Error is defined in § 108.02(10e) "Department error means an error made by the department in computing or paying benefits which results from: (a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission: or (b) Misinformation provided to a claimant by the department, on which the claimant relied." A department error should not be found where there is a judgment call but only where the result falls within the definition. The situation in this case does not meet either the mathematical mistake or misinformation categories. Therefore, I would find no department error and require the employe to repay the overpayment to the department.

__________________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) A hearing was held provisionally on the merits at the time of the timeliness hearing.