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


BETTY L AFFELDT, Employe

KELSEY HAYES CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000034LX


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a manufacturer of electronic switches for automobiles, for two years as a line worker. Her last day of work was November 29, 1999 (week 49).

The employer's attendance policy provides that more than 40 hours off work in a six-month period will be considered "unacceptable," and may be cause for disciplinary action.

The employe received two warnings for poor attendance in 1998, one on February 26 and the other on May 9. She was not warned or disciplined again about her attendance for over a year.

On March 22, 1999, the employe took an hour and a quarter of personal leave. On April 8 she took another ten hours of personal leave. The record does not reflect the reasons for this leave, and at the hearing the employe was unable to recall why she took the time off. On April 26 the employe was forty-five minutes late for work. On June 1 she took ten hours of sick leave. On July 29 the employe missed five hours of work in order to move into a new apartment. Finally, she missed work on August 31 and September 1 in order to visit a sick aunt in Minneapolis. On September 2, 1999, the employe received a warning for excessive absenteeism because she had missed more than 47 hours of work in a six-month period.

The employe next missed work on November 22, 23 and 24 due to illness. She had no telephone and did not report her absence on November 22. However, on November 23 the employe's sister, who also worked for the employer, presented a note to the employe's supervisor indicating that the employe was ill and would provide a doctor's excuse upon her return to work. When the employe reported for work on November 29, her next scheduled day, she gave the employer a doctor's note excusing her from work on November 22 and 23, but was notified that she was discharged. The employe had two and a half days of vacation left at the time of her discharge. However, the employer would not permit her to use those days to cover her absence on the ground that vacation must be requested in advance.

The issue to be decided is whether the employe's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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."

The employe was discharged after being absent in excess of 40 hours over a six- month period. The commission has consistently held that frequent absences do not in and of themselves amount to misconduct, lacking other evidence of culpability. Prior to her last week of employment, the employe missed one day of work due to illness and two and a half days for valid personal reasons, including moving to a new apartment and visiting a sick relative. In addition, the employe was tardy on one occasion, took a day of personal leave, and took an hour and fifteen minutes of personal leave for which she was unable to account. The employe then maintained a perfect attendance record for nearly three months until she missed three days of work due to illness. While the employe failed to notify the employer of her first day of absence, the employer's witness indicated that this made no difference in the decision to terminate her employment. Further, the employe did submit a note to the employer on the second day explaining that she was sick, and presented the employer with a doctor's excuse upon her return to work. (1)    Overall, while the commission agrees that the employe could have made a better effort to maintain regular attendance and to keep the employer informed of her absences, it does not consider her attendance record as a whole to be so egregious as to warrant a finding of misconduct.

The commission, therefore, finds that in week 49 of 1999, the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 49 of 1999, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 31, 2000
affelbe.urr : 164 : 2  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal does not rely upon a differing assessment of witness credibility, but is as a matter of law.

cc: KELSEY HAYES CO

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

I agree with the administrative law judge. The employe's excuse for her final absence is suspect because her medical excuse is written by a doctor whose name does not appear on the clinic roster. The excuse does not give a specific reason as to why the employe was off work. She testified that she was receiving an antibiotic for a viral infection for pain. Then she adds she had a bladder infection. The excuse covered only two of her last three days of absence.

I would affirm the appeal tribunal decision.

____________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissenting commissioner challenges the validity of the doctor's excuse. However, the employer never questioned the doctor's excuse and did not ask the employe to provide any additional medical documentation justifying her absence.