BEFORE  THE
INDUSTRIAL COMMISSION OF WISCONSIN


In the matter of the benefit claim of

ALBERTA J STORY, Employee, Appellant

Involving the account of

THRIFT DRUG COMPANY OF PENNSYLVANIA, Employer, Respondent

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 61733


The employer alleged that the employe was ineligible for unemployment benefits, on the ground that she terminated her employment. The commission deputy's initial determination denied benefits on the ground alleged. The employe appealed. Hearing was held at Kenosha on March 2, 1967, before an examiner acting as as appeal tribunal. The appeal tribunal reversed the commission deputy's initial determination and allowed benefits. The employer petitioned the Industrial Commission for review of the appeal tribunal decision.

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

FINDINGS OF FACT

The employe worked for the employer, an operator of a retail drug store in Kenosha, for about five months. She worked under the direction and supervision of the store manager.

A union had attempted to organize the employes of the employer's Kenosha store, but lost an election which was held on October 14, 1966. The business agent of the union advised the employe and co-workers that he could get jobs for them at a new discount store which was scheduled to open on October 21 in Kenosha and which had a contract with the union. The employe planned to apply for work at that store.

The employe normally worked until 5:30 p.m. About 2:00 p.m. on Thursday, October 20, 1906, she notified the employer's district manager that she was quitting but that she would work until October 29, the end of the following week, to enable him to secure a replacement. She gave no explanation to the employer for her resignation. The district manager replied that if she was quitting, she should leave immediately. She complied with his request and left the establishment. She was paid her wages through October 20, 1966.

The following week the employe applied for work at the discount store, was hired, and began working there on Tuesday, October 25, 1966. She worked until December 23, 1966, when she was laid off. In week 53, the calendar week ending December 31, 1966, she registered for work with the public employment office and filed claim for unemployment benefits.

The employe alleged that, because she was not permitted to work until October 29, she did not, in fact, quit, but that her employment was terminated by the employer.

(COMMENT: When the employe transmitted her notice of resignation of her employment effective October 29, 1966, which resignation was accepted by the employer, the employment relationship was terminated as of that date, and, after such notice of termination and acceptance, the employment contract could only be reinstated by mutual agreement. In the case of Schallock vs. Ind. Comm., Circuit Court for Dane County, January 28, 1958,  the Court had before it a case where the employe, on Tuesday, notified the employer that she would quit her employment on Friday of that week. On Wednesday she changed her mind and requested that she be permitted to remain at work, but the employer refused to allow her to do so. Circuit Judge, Edwin M. Wilkie, stated:

"Since the record reflects no written or specific verbal contract of employment it would seem that the employment relationship was terminable at will or upon reasonable notice which could be to the end of a pay period.

"The logical argument follows that when plaintiff transmitted to the employer her notice of termination of employment effective at the close of work upon pay day, January 7, 1955, that this put an end to the employment on January 7, 1955, regardless of what the employer did or did not do about the matter; and that after such notice of termination the employment contract could only be reinstated by mutual agreement.

"In any event the Commission found upon adequate supporting credible evidence that the employer received and accepted that notice of termination. It has long been established that the voluntary resignation of an employee, evidenced by a clear expression of the employee's intention to quit the employment, promptly and unconditionally accepted by the employer before the resignation is withdrawn by the employee, terminates the contract of employment."

The principle of the Schallock case was followed in the recent case of Powers v. Ind. Comm., Circuit Court for Dane County, April 4, 1967. In that case an employe had also given notice several weeks in advance that she would quit her employment on a specified date and, a few days before that date, requested that she be allowed to continue at work beyond the specified date and was refused permission sson to do so. Circuit Judge Richard W. Bardwell quoted some of the language of the Schallock case and further stated:

"It is further clear that once the employment contract has been terminated the employment relationship can be renewed only by the making or new contract. In Labatt, Master & Servant, 2nd Edition, Vol. 1, Section 182 at p. 570, the author states:

" 'The obligation of a contract of hiring is entirely destroyed, so far as ordinary incidents are concerned, when the parties have once consented to its dissolution, even though one of them may have withdrawn his consent a few minutes after it was signified. The servant, if he resumes work, will be presumed to do so under a new contract of the same tenor as the original one.' (Emphasis Supplied.)"

Judge Bardwell further stated:

"In other words, once an employee has agreed upon a termination date he cannot thereafter alter such date without the full assent of his employer, which obviously was not here forthcoming.")

In the instant case, the employe terminated her employment as of October 25, 1966, and the fact that the employer did not permit her to work between October 20 and October 29, 1966, does not alter the fact that the severance of the employment relationship as of October 29 was due to the resignation of the employe and to acceptance of that resignation by the employer. Since the employer refused to permit  the employe to continue at work between October 20 and October 24, 1966, it clearly incurred liability for unemployment benefits for any compensable unemployment between those dates. However, the employe did not file claim for benefits during that period.

The employe applied for work with the discount store the week after she had submitted her resignation, and started to work there on Tuesday, October 25. Although she had been advised by the business agent of her union, prior to October 20, that he could obtain a job for her at the discount store, he had no authority to hire her, and she did not have an offer of this job at the time that she submitted her resignation. Consequently, the termination of her employment was not in order to take another job; and was not for any other reason that would prevent disqualification for unemployment benefits.

(Any prior Industrial Commission or appeal tribunal decisions which are in conflict with the principles set out in this decision are hereby expressly overruled.)

The Industrial Commission therefore finds that the employe terminated her employment with the employer, within the meaning of section 108.04(7) (a) of the statutes, and that such termination was not within any of the exceptions to said section.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer.

Dated and mailed May 18, 1967.
MC 627  VL 1007.20

/s/ Joseph C. Fagan

/s/ Gene A. Rowland

/s/ E. E. Estkowski


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