BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

DONNA M DALLEN, Employee

Involving the account of

TOUCHSTONE CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92602011WB


The Department of Industry, Labor and Human Relations, issued an Initial Determination in the above-captioned matter which held that in week 44 of 1991, the employe was discharged but that the discharge was not for misconduct connected with her work. As a result, benefits were allowed. The employer appealed the determination to an Appeal Tribunal. On February 27, 1992, the Appeal Tribunal issued a decision which affirmed the Initial Determination. The employer filed a timely petition for Commission review of the Appeal Tribunal Decision.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one year and ten months, most recently as a house manager, for the employer, a community based residential care facility. Her last day of work was October 27, 1991 (week 44).

On October 14, 1991, the employe told the employer that she planned on quitting sometime between Thanksgiving and the end of the year. The employer pressed the employe for a more certain date which the employe declined to give. The employe planned on resigning sometime between December 1 and December 15, 1991. By letter dated October 18, 1991, the employer acknowledged the employe's notice of resignation and noted that her exact date of quitting would be between December 1 and December 15, 1991.

The employe asked for, and was granted, time off from October 23 through October 27, 1991. The employe agreed to provide the employer with a definite resignation date when she returned to work on October 28, 1991.

The employe returned to the employer's facility on October 27, 1991. On that same date, the employer handed the employe written notification that it was terminating her employment effective immediately and listed the reasons for the termination.

The first reason offered by the employer for terminating the employe's employment was that she failed to notify the employer on October 16, 1991, that a resident had returned to the employer's facility from the hospital. The employe was aware of the employer's requirement that it be notified of residents returning, however the employe did not notify the employer of the return because the resident's daughter asked her not to and promised to advise the employer of the resident's return. The employer further noted that the employe failed to perform monthly fire alarm checks for September and October. The employe had forgotten to perform the September check and had not had a chance prior to her termination to perform the October fire alarm check. The employer also indicated concern over discrepancies in the petty cash in that receipts did not match disbursements. The employe was not the only one with access to the petty cash.

The employer also noted that the employe had been warned at the end of July of 1991 to cut down the number of personal long distant phone calls she made. The employer's discharge letter indicated that the employe had continued to make such phone calls. The employer also expressed a related concern that the employe was not attending to residents during the time she was making such long distant calls. The employer also noted that it had received complaints from residents that the employe's conversations and language were inappropriate and offensive.

The final reason indicated for the employe's discharge was that she had collected money from co-workers for flowers to be sent to the employer's coadministrator who was hospitalized in August, which flowers the employer paid for. The employe did not later on reimburse the employer for the money spent on the flowers nor return the money to the co-workers. The employe had kept the money waiting for a second billing to be sent to her.

The initial issue to be decided is whether the employe voluntarily terminated her work with the employer or was discharged and, whether she is eligible for benefits based on the separation of employment.

The Administrative Law Judge found that the employe had not voluntarily terminated her employment because, although she had given notice of her intention to quit, the exact date for such termination had not been established. The Commission disagrees. The employe did not actually give a specific last date of employment to the employer, however, she did indicate a date upon which she would no longer be working for the employer. That is, it was clear from the employe's own testimony that she was not going to work past December 15, 1991 (week 51). The employe testified that she planned to quit by that date and the employer acknowledged that outside quitting date in a memo to the employe. For these reasons, the Commission believes that the employe would not have worked later than December 15, 1991 (week 51), and therefore must be held to have quit effective that date.

The Commission has long held that an employer may accelerate an employe's intended date of quitting by discharging the employe. If the employer can establish that the discharge was for misconduct connected with the employe's work pursuant to section 108.04 (5), of the Statutes, the employe is ineligible for benefits from the day of discharge. However, if the employe's voluntary termination is merely accelerated without a finding of misconduct, the employe is eligible for benefits until the intended day of quitting.

The Commission agrees with the Appeal Tribunal that the employe's actions, although not exemplary, did not rise to the level of misconduct connected with her work. The most egregious act by the employe was failing to notify the employer that the resident had returned to the facility, despite her knowledge that such notice was required by the employer's policy. However, the employe's failure is ameliorated by the fact that the resident's daughter had asked the employe not to notify the employer and had assured the employe that the daughter would provide such notification. For these reasons, the Commission believes the employe's failure to notify the employer of the resident's return was an isolated instance of poor judgment on her part.

The employer did not establish that the employe's failure to perform a fire alarm cheek in September was anything more than an oversight on her part and accelerated her quitting before she was able to perform the October check.  Further, the employer did not establish that the employe was solely responsible for the petty cash and did not allege that theft was a concern. Much of the employer's testimony regarding the employe's scheduling habits and conversations was hearsay and cannot be used to base a finding of misconduct.

The employer did establish that the employe had been warned in July to cut down her phone usage, but did not establish that the employe was directed not to make such calls at all. Finally, the Administrative Law Judge found persuasive the employe's explanation that she was simply awaiting a second billing to pay for the flowers previously ordered and the Commission has found no compelling reason to disturb that credibility determination. For the above reasons, the Commission finds that the employer did not discharge the employe for misconduct connected with her work, but simply accelerated the date of her quitting.

The employe voluntarily terminated her work because she was seeking a new career and a new life. While the employe may have had valid personal reasons for voluntarily terminating her employment, those reasons do not fall within any exception to the quit disqualification of section 108.04 (7)(a) of the Statutes. The employe is therefore ineligible for benefits until she meets the section 108.04 (7)(a) requalifying requirements. Department records indicate that the employe met those requalifying requirements as of week 4 of 1992.

The Commission therefore finds that in week 51 of 1991, the employe terminated her work with the employer, within the meaning of section 108.04 (7)(a), of the Statutes, and that her quitting was not for any reason constituting an exception to that section, but that as of week 4 of 1992, at least four weeks had elapsed since the end of the week of quitting and she had earned wages for work actually performed in covered employment after the week of quitting equaling four times the weekly benefit rate which would have been paid had the quitting not occurred, within the meaning of that section.

The Commission further finds that the employe was paid benefits in the amount of $280.00 for weeks 51 and 52 of 1991 and weeks 1 through 3 of 1992, for which she was not eligible and to which she was not entitled, within the meaning of section 108.03 (1) of the Statutes and that, pursuant to section 108.22 (8)(a) of the Statutes, she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, the employe is eligible for benefits during weeks 44 through 50 of 1991 and beginning again in week 4 of 1992, if she is otherwise qualified. She is ineligible for benefits during weeks 51 of 1991 and through week 3 of 1992. She is required to repay the sum of $280.00 to the Unemployment Reserve Fund.

Dated and mailed October 15, 1992
132 : CD1003  MC 627

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

The Commission did consult with the Administrative Law Judge prior to issuing its decision in this matter. The Commission's reversal does not involve a differing assessment of witness credibility or demeanor. The Administrative Law Judge did not believe that the parties had reached a definite date of resignation. However, given the employe's testimony that she planned to quit no later than December 15, 1991, the Commission has treated that later date as the effective date of her quit.

cc:
Christopher J Johnson
Attorney at Law
Beck Chaet Loomis Molony & Bamberger SC


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