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


LUCYMAE E GRAW, Employee

APAC CUSTOMER SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005945LX


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately one month as a customer service representative for the employer, a call center. Her last day of work was October 3, 2000 (week 41). The employment relationship ended in week 42 of 2000.

The issues to be decided are whether the employee quit or if there was a suspension of employment by the employee or suspension or termination by the employer because the employee was unable to do or unavailable for, any suitable work available with the employer and if so, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

After the employee's last day of work she was hospitalized due to a medical problem. On October 9, 2000 (week 42), she contacted her immediate supervisor indicating that she was still hospitalized and did not know when she would be able to report to work. She was informed that the employer could not allow her to have any more days off. In discussing her options with her supervisor, she was provided with the option of terminating her employment so she would be eligible for rehire by the employer. She reported to work on October 11, 2000 (week 42) with a doctor's excuse indicating she could return to work, but the employer had already processed her termination papers.

The commission finds that the employer terminated the employee's employment because the employee was unable to perform suitable work otherwise available with the employer. The employee appropriately gave notice to the employer that she was still hospitalized and could not return to work. The employee could not determine when she would be able to return to work. The employer simply indicated that she could not take additional leave. It was the employer's decision that it could no longer continue the employee's employment by offering her leave. The employee did not initiate a claim for benefits until after she had been released to return to work. The employee reported for work on October 11 and was willing and able to work at that time.

The commission therefore finds that in week 42 of 2000 the employee's employment was terminated by the employer because the employee was unable to perform suitable work otherwise available with the employer, but that the employee was able to work and available for work when she initiated her benefit claim in week 42 of 2000, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The administrative law judge's decision is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2000, if otherwise qualified.

Dated and mailed January 19, 2001
grawluc.usd : 132 : 1 AA 120  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


cc: APAC CUSTOMER SERVICES INC


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uploaded 2001/01/25