Wis.LIRC UC Decision: Weiler - November 2, 2000 - MC 626 - Discharge, layoff or quit? - generally - where supervisor told employee that he would "see him", this meant employee was leaving, and it was supervisor who was the moving party in the separation by his statement to the employee; a statement by an employee that he or she "might" be leaving employment is not necessarily a quit of employment

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

LORIN L WEILER, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003870MD

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 employee is eligible for benefits beginning in week 23 of 2000, if he is otherwise qualified. No benefit repayment is required by this decision.

Dated and mailed November 2, 2000
weilelo.usd : 105 : 1 MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of discharge. In a similar case, the commission held that the employer's statement to the effect that "this" was not going to work out, was a discharge by the employer. See Steagall v. Andersen McMahon Chiropractic Clinic, UI Dec. Hearing No. 99200918EC (LIRC 10/8/99). In that case, the employer had asked the employee to work late each evening for a week. The employee could not do so and in effect told the employer that the employer was going to have to discharge her. The employer did not state that it was discharging the employee, but rather stated that "this was not going to work out." The administrative law judge held, and the commission affirmed, that such a statement implies that the employee in question may not continue working for the employer. The commission reasoned that that is what the statement means. The same reasoning is applicable in the present case. The employee's supervisor told the employee that he would "see him." This means the employee is leaving, and it was the supervisor who was the moving party in the separation by his statement to the employee. Indeed, the commission has found that even a layoff at an employee's request is a discharge by the employer, because it remains the employer's choice whether to grant the employee's request.

Even a statement by an employee that he or she might be leaving employment, is insufficient to constitute a quit of employment. See Augsburger v. Seefeld Family of Funeral Chapels, Inc., UI Dec. Hearing No. 99401959AP (LIRC 12/23/99). In that case the employee indicated to the employer that she might be leaving the employment in one day. The administrative law judge nonetheless found a discharge, and the commission affirmed, reasoning that the employee never stated to the employer that she in fact was leaving the employment. The employment ended when the employer prepared a resignation letter and required the employee to sign it. The commission agreed with the administrative law judge that it was the employer's actions which were the impetus for the separation, which made it a discharge by the employer. Again, the same reasoning is applicable in the present case. It was the supervisor's comment to the employee which caused the employee to leave the premises.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: COPPS CORP

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I do not see this case as similar to Steagall v. Andersen, McMahon Chiropractic Clinic. If we believe the employee's version that the employer said "fine, see yah", I do not see that as a discharge. The employer is simply saying that if you feel you can get work that pays you more someplace else the employee is free to try. If the employee does not look for other work he can still work for the employer. The employee believed that "fine, see yah" meant that the employer wanted him to leave so the employee walked off the job after about an hour of work.

The commission had found that it is the employee's responsibility to clarify ambiguous situations by asking the employer if he still has a job or if he has been discharged. Here the employee assumed he was discharged on very flimsy basis. While the employee did call in about an hour and one half later the employer had already processed the employee's quit. Once the employer accepts a quit the relationship ends. While it is possible for the employer to reestablish the relationship, the fact that they do not does not make the separation a discharge.

When the employee called the employer, the employee said he walked out because he felt he was unappreciated and was hurt by that. That is not the same as being discharged. It is more like the employer saying "we don't care if you leave for another higher paying job." The employee also testified that he thought if he allowed the employer to calm down, that the employer would allow him to go back to work. The employee walked out because he felt unappreciated not because the employer discharged him. At the time the employee walked out he quit. While he changed his mind later and called the employer that does not unilaterally reestablish the relationship.

Thus, I would reverse and find that the employee quit not within any exception which would allow for the immediate payment of unemployment benefits.

____________________________________
Pamela I. Anderson, Commissioner

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]