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


ROBERT M VERDONE, Employee

JOHNSON LITHO GRAPHICS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00201681EC


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 about two and one-half years as a machine operator for the employer, a commercial printing business. His last day of work was June 16, 2000 (week 25).

The employee notified the employer that he would not be in to work on June 19 and 20, 2000 (week 26). On June 21, 2000 (week 26), the employee did not report to work or notify the employer that he would not be in. On June 22, 2000 (week 26), the employee appeared at work around his starting time and spoke with his supervisor, and requested a leave of absence. The supervisor told him to speak to the person who handles human resource management. The employee did not speak to human resources but instead went home. On June 23, 2000 (week 26), the employee appeared at the employer's facility and spoke to a person in human resources and requested a leave of absence. The employee stated that the leave of absence was for personal reasons, and that he was requesting two weeks off. The employee and the human resources representative consulted a calendar to determine when the employee was requesting his return to work be, which was July 10, 2000 (week 29). There was conversation following discussion of the leave where the employee was complaining about other people. The human resources representative considered that the employee was becoming argumentative. The human resources representative indicated to the employee that she would let him know about the leave of absence.

The human resources representative sent a letter to the employee dated June 25, 2000 (week 27) indicating that the decision was made to not allow him a leave of absence and that his termination of employment, which the employee was considered to have initiated, would stand with an effective date of June 21, 2000.

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged. The second issue is whether his separation from employment was for a reason that permits the immediate payment of unemployment insurance benefits.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The commission finds that the employee voluntarily terminated his employment. The employee failed to appear at work as scheduled. The employee failed to provide proper notice of his ongoing absence. When the employee finally appeared at the employer's work place he did not heed his supervisor's directions to speak with human resources. Instead the employee left the employer's premises without explanation. When the employee finally spoke to the human resources manager he was belligerent and less than forthcoming in explaining his past absences and need for a leave of absence. The employee's actions were inconsistent with an intent to maintain the employment relationship.

The commission therefore finds that in week 26 of 2000 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason constituting an exception to the quit disqualification.

The commission further finds that the employee was paid benefits in the amount of $4334.00 for weeks 34 through 36, 38 through 43, 47, and 53 of 2000, and weeks 1 through 3 of 2001, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 26 of 2000, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $4334.00 to the Unemployment Reserve Fund.

Dated and mailed February 1, 2001
verdoro.urr : 132 : 1 : VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ did not find the employer's testimony regarding the June 23 conversation to be credible. On the other hand the ALJ did not find the employee's testimony regarding the conversation with his supervisor to be credible. The commission's finding that the employee quit is based for the most part on the employee's actions prior to meeting with human resources on June 23. The commission does not find that the employer's actions or discussions with the employee on June 23 changed the fact that the employee had already quit his employment effective June 21, 2000. The employee's testimony at the hearing was at odds with his statement to the adjudicator. Exhibit 10. The employee indicated in his prior statement that he did not contact the employer on June 21 but testified at the hearing that he did. The ALJ did not credit his testimony and in fact found that he failed to provide notice. The ALJ also indicated in conference that she found the employee's explanation for his absences to be pretty shaky.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2001/02/05