Wis.LIRC WC Decision: Vardell - March 24, 2009 - ND � 7.32 Unreasonable Refusal to Rehire; Refusal Must Have Been Without Reasoanble Cause--Reasonable cause not shown based on failure to follow rule requiring 60 advance minutes notice of an intended absence where employee gave 42 minutes notice of absence due to work injury.

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

MARY M VARDELL, Applicant

COUNTY OF ROCK, Employer

WORKER'S COMPENSATION DECISION
Claim No. 2006-011248

An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 24, 2009
vardema . wsd : 175 : 6 ND � 7.32

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review the administrative law judge erred in determining the employer unreasonably refused to rehire the applicant when it discharged the applicant on May 17, 2006 after her work related injury on March 23, 2006, and is liable to the applicant for one year's lost wages pursuant to Wis. Stat. § 102.35(3). The employer states the Wisconsin Legislature never intended in enacting section 102.35(3) that an employer's legitimate work policies and businesses decisions should be subject to the second guessing of a single administrative law judge acting in isolation of the facts. The evidence indicates the applicant worked for the employer as a nursing assistant and was injured at work on March 23, 2006. On May 11, 2006 the applicant was scheduled to work but was unable to report for work due to her work related injury and notified the employer 42 minutes prior to the start of her work shift.

The applicant was subsequently discharged on May 17, 2006 for failure to follow the employer's rule which required giving at least 60 minutes notice of an intended absence prior to the start of a regularly schedule work shift. The administrative law judge appropriately noted the applicant established a prima fascie case for unreasonable refusal to rehire pursuant to Wis. Stat. § 102.35(3). The evidence indicates the applicant was injured at work and was able to work at the time of her discharge, but the employer refused to continue to allow her to work and discharged her after her work injury. It was the employer's burden to establish that it had reasonable cause to discharge the applicant. The employer contended at the hearing that it had reasonable cause for discharging the applicant due to her failure to follow its rules in requiring notice of absence prior to the start of a work shift. As the Wisconsin Supreme Court noted in West Allis School District v. DILHR, 116 Wis. 2d 410 (1984), an employer, if there is suitable employment available, can only refuse to rehire for a cause or reason that is fair, just or fit under the circumstances. In this case the evidence does not indicate that the employer's reason for discharging the applicant was fair, just or fit under the circumstances.

The administrative law judge appropriately noted the employer did not establish specific harm was caused by the applicant's late call off. Mr. Becker, the employer's human resource director, testified that the employer's work rules state that an employee is to call 1 hour before the start of a shift, and if they call 1 minute late it is a late call, and it is looked at as a violation of the policy and is treated as such. The evidence indicates that the applicant's chiropractor notified the employer the applicant was off of work due to a work injury on May 11, 2006. Mr. Becker testified that the employer decided that the applicant's absence on May 11 was not for a work injury but he did not have any contrary medical opinion to that of the chiropractor. The employer did not provide any testimony or explanation why a late call off for a work related injury condition was not treated as an exception to the late call off rule.

An employer's policy of including absences caused by a work related injury in the total number of absences allowed before termination may run afoul of the reasonable cause provision as noted in Great Northern Corp. v. LIRC, 189 Wis. 2d 313 (Ct. App., 1994). The administrative law judge appropriately noted that in Ireland v. G.L. French Corp., worker's compensation cl. no. 2002-044546 (LIRC September 16, 2004) when absences due to a work injury are at least part of the reason for the discharge the fact the employee has a 12 point attendance violation rule is not a sufficient offence.

Given the fact the employer determined to discharge the applicant despite the fact she was absent due to a disability caused by her work related injury, without showing evidence why the applicant's late call off was a problem, or why it treated the late call off as a violation without regard for the circumstances but simply automatically applied its rule, the evidence is sufficient to establish the employer unreasonable refused to rehire the applicant on May 17, 2006 after her work related injury of March 23, 2006 and is liable to the applicant for one years lost wages pursuant to Wis. Stat. § 102.35(3). The employer has failed to establish that its reasons for determining to discharge the applicant was for a cause or reason that was fair, just or fit under the circumstances.

cc: Attorney James Meier
Attorney Jerome Long

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