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


CHAD J PAPLHAM, Employe

ALGOMA LUMBER COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401318GB


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 13 of 2000, if otherwise qualified.

Dated and mailed July 13, 2000
paplhch.usd : 145 : 3   MC 605.09  MC 660.01  MC 665.12

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the ALJ refers to whether the employe's discharge was for misconduct connected with his work. However, the employer contends that the employe's discharge was not for misconduct, but rather as a result of unsatisfactory attendance. For unemployment insurance purposes, a worker who is discharged is allowed benefits unless his or her discharge is for misconduct connected with his work or unless he or she is disqualified for some reason unrelated to the separation. Mere unsatisfactory performance is not misconduct, and therefore benefits are allowed when this is the reason for discharge. For example, a worker who cannot meet a production quota may be discharged, but benefits are allowed, as long as the unsatisfactory performance was the result of the worker's inability to meet the quota when working to the best of his or her ability. If the worker could have met the production standards, but fails to do so, for example because the worker takes too many breaks, that would amount to an intentional disregard of the employer's interests and would be misconduct connected with his or her work. Similarly, attendance violations can be misconduct, and thus serve to disqualify a worker from benefits, depending on the circumstances. Generally, a worker who is absent for valid reasons is not found to have committed misconduct. For example a worker who is absent because of illness has little or no control over his or absences and his or her actions therefore do not evince such a substantial and intentional disregard of the employer's interest.

In this case, the employe had a medical problem that caused him to be absent. This caused inconvenience for the employer and the employer may have made a valid business decision when it discharged him. However, the employe's absences were, for the most part, for valid reasons, and therefore his actions did not evince such a wilful and intentional disregard of the employer's interests as to amount to misconduct. The commission cannot fault the employer for failing to recognize the employe's medical problems when the employe failed to inform it of the problem. However, in determining whether an employe's attendance amounts to misconduct, the commission considers the employe's reasons for absence. In this case, the evidence demonstrated that the employe's absences were generally the result of his depression. The commission also considers whether the employe was or should have been aware that his employment was in jeopardy as a result of his attendance. This is because some employers will tolerate frequent attendance violations and therefore the worker's actions do not necessarily show a disregard for the employer's interests. In this case, while the employer did not condone the employe's actions, it did fail to follow the posted attendance policy. Therefore the employe would not have been aware that his job was in jeopardy as a result of his attendance.


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