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


NAGIM ZECIRI, Employee

VISTA INTL PACKAGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608127RC


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a meat casing business, for five years as a machine operator. His last day of work was May 23, 2000.

On May 23, 2000, the employee told his supervisor that he had to go to Yugoslavia to visit his sick father. The employee received permission to be away from work. The employer also talked to the employee's wife and told her that the employee could have an indefinite leave of absence, and that he would have a job when he returned.

On May 28, 2000, the employee's wife notified the employer that the employee's father had died. The employer told her that the employee should take care of what needed taking care of and let the employer know when he was returning.

On about June 14, 2000, the employer called the employee's wife to ask when the employee was returning to work. The employee's wife indicated she did not know, but that she would try to contact the employee and find out when he would be back.

The following day the employer sent a certified letter to the employee's home, indicating that the employee would have to return to work on June 26 or be out of a job. The letter was sent both by certified mail and regular mail. Although the certified letter went unclaimed, the employee's wife received the copy which was sent by regular mail.

The employer spoke with the employee's wife one more time after this letter was mailed, at which point she again stated that she would try to get a hold of the employee. The employee's wife was reminded during this conversation that the employee needed to be back at work by June 26.

On or before June 23, 2000, the employee's wife called the employee and told him that if he did not return to work by Monday, June 26, he would be fired. The employee told his wife to notify the employer he would not be able to do so. However, the employee's wife had no further contact with the employer.

On July 11, 2000, the employer sent the employee a letter notifying him that, because he did not return to work by June 26 or contact it about his intentions, his position had been filled.

The question to decide is whether the employe's separation from employment was a quit or a discharge.

The key element to determining whether an employe voluntarily quit is the employe's intent. 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." The courts have consistently held that an employe can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer contended that the employee quit by failing to return to work on the date directed. The commission agrees. Although the employer originally granted the employee an indefinite leave of absence, the employee later learned that he was expected back at work by June 26 or that he would be out of a job. While the employee may have had a legitimate reason to seek an extension of his leave of absence beyond June 26, he made no such request to the employer, nor did he make any effort to keep the employer apprised of his plans. The commission believes that the employee's conduct in this regard was so inconsistent with a continuing employment relationship as to evince an intent to quit.

The commission therefore finds that in week 27 of 2000 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that the employe was paid benefits in weeks 36 and 37 of 2000 in the total amount of $610, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 employe 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 27 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 $610 to the Unemployment Reserve Fund.

Dated and mailed February 22, 2001
zecirna.urr : 164 : 1  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the appeal tribunal decision regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.

cc: VISTA INTERNATIONAL PACKAGING

MISSY OWENS
SENIOR CLAIMS ANALYST
C/O JON JAY ASSOCIATES INC


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uploaded 2001/02/26