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

FRANKIE J MCKINLEY, Employe

ST ANNES HOME FOR THE ELDERLY MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608688MW

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 over three years as a custodian for the employer, a healthcare facility. His last day of work was September 3, 1999 (week 36) and he was discharged on September 7, 1999 (week 37).

The issue to be decided is whether the employe's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

During 1999, the employe had four absences, six long lunches, was late four times, was sick three times and left early once. On July 28, 1999, the employe signed a last-chance agreement which indicated that he would be discharged as a result of any attendance infraction. On Saturday, September 4, 1999, the employe's car broke down on the way to work. The employe called in and informed a security guard that he would not be at work because he had car trouble. He called in on Monday, to explain the situation to the housekeeping and laundry supervisor and see if he still had a job. The supervisor called him back and informed him that he had been discharged.

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 employer contended the employe's attendance amounted to misconduct connected with his work. The commission agrees. The employe had very poor attendance and had signed a last-chance agreement indicating that any attendance violations for a year would result in discharge. It is true that the agreement was severe and that it may have been impossible for anybody to have perfect attendance for an entire year. However, the commission generally considers, in determining whether attendance violations amount to misconduct, the number of absences, the reasons for absence, and whether the worker has been warned regarding his or her attendance. The commission further considers whether the worker is aware that his or her employment is in jeopardy as a result of his or her attendance.

In this case, the employe had been warned at the end of July, and only about one month later, was off work for three days. The employe indicated that his car broke down on the way to work. A first instance of car problems can be a valid reason for lateness or even an absence, however, it does not justify three days of absence. The employe indicated that he believed he would be discharged for even being late, and therefore did not bother coming in. The commission is aware that the last- chance agreement does so indicate. However, in this case, the employe did not even attempt to contact his supervisor to see whether he would be discharged, but simply failed to report to work. The employe indicated that he called his supervisor on Monday to see if he still had a job. This suggests that the employe was not certain that he would be discharged for one violation of the agreement. The employer had tried very hard to get the employe to be at work and to be on time in the past. This suggests that the employer might not discharge the employe if he had a valid reason for his absence, and made arrangements to report to work as soon as possible. The employer considered his absence of three days when it discharged him, as well as the fact that he made no effort to get to work after his car broke down.

The commission therefore finds that the employe's attendance record as a whole demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 37 of 1999 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 47 through 52 of 1999, amounting to a total of $3,220 for which he was not eligible and to which he 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 47 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred.

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.

The initial benefit computation (UCB-700) issued on November 15, 1999, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed April 20, 2000
mckinfr.urr : 145 : 5  MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ 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 was convinced he would be discharged for any violation of his last-chance agreement. The statements regarding immediate discharge were very clear, and he was told this on several occasions. While the commission agrees that the employe was told he would be discharged for any violation of the policy, the employe should have made arrangements to report to work, or talk to his supervisor, before assuming he would be discharged. The employer had gone out of its way to keep the employe employed, and it may have done so again. The employe's failure to even ascertain whether he would be discharged demonstrates a disregard for the employer's interests. In addition, the employe was only in the position of having to sign a last-chance agreement because he had such poor attendance in the first place. The commission considers the employe's entire attendance record in determining that the employe's discharge was for misconduct.

mckinfr.urr

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