Wis.LIRC UC Decision: Solomon - April 3, 2000 - MC 688 - Absence, tardiness, leaving or stopping work - non-probationary employe would not have been discharged with this attendance record, but employer had different expectations for probationary employe who, despite warning, did not change child care arrangements

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

BRANDY C SOLOMON, Employe

MARSHALL & ILSLEY CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00600142MW

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 worked for three months as a lock box clerk for a data services company. She was discharged on December 14, 1999 (week 51).

The employe was on probation throughout her employment. During this time, she was tardy six times. On all but one occasion, it was fewer than 15 minutes as the result of an unreliable baby sitter. On one occasion, the employe was one and a half hours late due to a flat tire. The employer has a stricter attendance policy for probationary employes and permitted only four occasions of tardiness before discharge. On December 3, after her fifth tardy, the employe received notification that her schedule could be changed from 10 p.m. to 10:30 to accommodate her attendance problem. It further notified her that due to performance problems and her tardiness, her probationary period would be extended to the end of the year. She was placed on notice that the next instance of tardiness in that period would result in her discharge. The employe declined the schedule change. She was tardy again on December 15 for the same reason and was discharged.

The issue in this case is whether the employe's discharge was for misconduct connected with her employment.

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."

The employe was on notice that she would be discharged if she was tardy again before the end of the year. She did not make any alternative arrangements for her unreliable child care provider nor did she accept the schedule change that was offered to her. While under the employer's rules, her tardiness record would not have been sufficient to discharge her had she not been on probation, the employer made clear that it had different expectations for her during this introductory period. Despite being notified that her job was in jeopardy, the employe did not take the warning seriously enough to make a change in her child care arrangements. The responsibility ultimately lies with her. Her failure to conform her attendance to the employer's requirements amounts to a substantial disregard of the employer's interests.

The commission therefore finds that in week 51 of 1999, the employe was discharged and that the discharge was for misconduct connected with the employe's work, within the meaning of Wis. Stat. � 108.04(5).

The commission further finds that the employe was paid benefits in weeks 51 of 1999 through 13 of 2000 totaling $ 3,119; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. � 108.03 (1), and pursuant to Wis. Stat. � 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute � 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)(a) and (b), department 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, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. � 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 51 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 is required to repay $3,119 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 April 3, 2000
solombr.urr : 178 : 5 MC 688

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission's decision is not based on any differing assessment of witness credibility. The commission reaches a different legal conclusion from essentially the same facts.

NOTE: Repayment instructions will be mailed after this decision becomes 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.

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