Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Maplecrest Manor, Inc. and DWD v. LIRC and Laurie L. Lancaster, Case 06-CV-3001 (Wis. Cir. Ct., Waukesha Co., July 11, 2007)

Digest Codes:   MC 605   MC 606 

The employee worked for two years as a kitchen staff member for the employer, a nursing home. She had minor attendance problems in the past, but the employer’s case for misconduct was based solely on four separate instances of tardiness that occurred between May 13, 2006 and May 31, 2006. The employer gave her a three-day suspension for her 90-minute tardiness on May 19, 2006, after she had been tardy by about ten minutes on May 13, 2006, and again on May 14, 2006. When she was tardy for ten or 15 minutes on May 31, 2006, the employer discharged her.

The appeal tribunal found misconduct.  The commission's decision  reversed, indicating that it would be an anomalous result not contemplated by the legislature to find misconduct for four instances of tardiness, when that number of tardies would not result in the lesser benefit disqualification of 108.04(5g). The commission’s decision also stated that prior to the passage of (5g), it may have agreed with the appeal tribunal and found misconduct in this case.

The department appealed and argued that the analyses under 108.04(5) and 108.04(5g) must be kept completely separate, and applying the Boynton Cab standard under 108.04(5), the employee’s tardiness constituted misconduct. The commission argued in response that 108.04(5) and (5g) must be read in pari materia, and that to avoid absurd results the (5) criteria should be considered as a factor in determining whether or not misconduct has been demonstrated under the Boynton Cab standard. The commission also argued that regardless of (5g), the four tardies in this case did not constitute misconduct under the Boynton Cab standard.

Held: The commission is reversed. The court reasoned that there is “no legal basis” for the commission’s decision to read the statutory subsections in pari materia, or for the commission to avoid absurd results in applying those subsections. The court further stated that even if the commission has the authority to avoid absurd results, the finding of misconduct in this case “would not necessarily yield an absurd result.” The court held that the four tardies constituted misconduct under the Boynton Cab standard.


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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