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


LISA A BURNS, Employe

AVES STUDIO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200718NR


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 as of week 3 of 2000, if she is otherwise qualified.

Dated and mailed July 28, 2000
burnsli.usd : 145 : 5   MC 665.04  MC 688.1  MC 699.05

/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 employe claimed that she indicated on her job application that she was pregnant, but that she did not. The employer sent a copy of the job application with its petition. However, the record reflects that the employe said she thought she might have written that she was pregnant on her application. She did not state definitively that she did. Further, the employer indicated that there was no question related to pregnancy on the application. Therefore, the commission credits the employer's testimony, however, that fact is not important to the outcome of this case. Thus, the commission does not believe it is necessary to remand to include the application in the record.

The employer further asserts that the employe's testimony was untrue. Even if the commission were to conclude that, as the employer asserts, the employe was discharged for the performance problems mentioned by the employer, it would not be able to conclude that the employe's discharge was for misconduct. The employe was never warned that her job was in jeopardy as a result of her attendance violations. The employer never issued a warning to the employe regarding any performance problems. Thus, the employe was not given an opportunity to correct the problems, nor was she made aware the employer considered these problems to be serious. Certain behavior is so clearly detrimental to the employer's interests that a warning is not necessary. However, in most cases, the commission will not find misconduct for performance problems unless the employe is warned and fails to heed the warning.


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