BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


RONNIE W. LEE, Employee

UNIVERSAL FOODS CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-003723


On September 6th, 1990, an Appeal Tribunal Decision was issued, modifying and affirming a Department Deputy's Initial Determination, and holding that in week 2 of 1990, the employe voluntarily terminated his employment, within the meaning of sec. 108.04 (7), Wis. Stats., and denying benefits. On September 25, 1990, the employe timely filed a petition for review.

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 during about four and one third years as a grater on the second shift for the employer, a manufacturer of food products. His last day of work was on or about December 28th, 1989 (week 52), and he was discharged on January 10, 1990 (week 2).

In December 1988 the employe was involved in an altercation with a peeping Tom and was placed on probation and required to undergo drug abuse treatment. In that same month he underwent treatment for cocaine abuse at a hospital.

On November 27, 1989, the employe was admitted to a hospital for drug abuse treatment. The record does not establish when the employe was released from the hospital, but does establish that by, at most, December 28 he was back at work. On December 29, 1989, the employe was incarcerated. He unsuccessfully attempted to be released under the Huber Act. On December 29 he contacted the employer's plant manager and informed the plant manager that he was in jail and was doing all that he could to get out. The plant manager informed him that under the collective bargaining agreement the employe had three days in which to be released and report for work, otherwise the employment relationship would be terminated. The employe did not report for work following December 29 and was not released from jail until July 10, 1990. On January 10, 1990 (week 2) he was discharged for failure to report for work on January 3, 4 and 5 and January 8 and 9, 1990.

The first issue presented is whether or not the employe voluntarily terminated his employment under a constructive quit theory. The employe had no intent to quit his employment and, in fact, attempted to telephone the employer collect three or four times after December 29, but the employer would not accept his calls. Under these circumstances, the Commission considers that the employe did not quit his employment.

The next issue presented is whether or not the employe was discharged for misconduct.

At the hearing the employe provided no credible explanation as to why he was incarcerated. The Commission must therefore determine whether an employe who fails to report for duty, can maintain his relation with the employer merely by notifying the employer that he is held in jail with no foreseeable release date or probability of release for work under Huber privileges.

Considering the length of the employe's confinement, and further considering that he provided no credible explanation for his incarceration, it must be assumed that he was being held as a result of a volitional act on his part. An employe who wilfully and intentionally starts the change of events which created circumstances making him unavailable is certainly the defaulting actor. In determining the question of availability, the end result must be directly related to the beginning of the course of conduct. In this and in similar cases he is acting inconsistently with the continuation of the employe-employer relationship. It would be contrary to the policy and purpose of the legislation providing for unemployment compensation to cast that burden of a self-created disadvantage of and by the employe onto the shoulders of the employer, by leaving him with work to be done and no available employe to do it. Work was present for the employe on January 3 and continued to be. On January 10 the employer notified the employe of the discharge.

The arrest of an employe for off-job conduct is not per se misconduct connected with employment. Depending upon the reason for the arrest and the nature of the employe's duties, it may be considered misconduct connected with employment if, under the circumstances, it directly affects his suitability for his work. This would be so even if no appreciable absence from work resulted. However, if the nature of the arrest does not affect an employe's suitability for work, then the question is resolved by considering the resulting absence from work. If it does not affect suitability and does not result in an appreciable absence from work, it is not considered misconduct connected with employment.

In this case there is no claim that the reason for the employe's incarceration was connected with his employment. However, the result of his being incarcerated made it impossible for him to work for a period of at least six months, and his absence is deemed to be connected with his employment and is for an invalid reason.

To grant an employe benefits where his employment has been terminated as a result of imprisonment for consequences of his own actions is against public policy. The failure of the employe to report to work was due to his criminal failure to perform his obligations under the law. The law will not assist a person to gain alleged rights where there has been a criminal failure to perform his legal obligations. By his own conduct the employe voluntarily placed himself in jeopardy. The legislature never intended that a man who was sent to prison for a wilful criminal act should be entitled to unemployment compensation benefits without reservation. Payment of compensation is conditional upon continued involuntary unemployment. The purpose of the Act is to afford relief to those who have been unemployed through no fault of their own. To compensate a man who has been incarcerated for the commission of a crime against the resultant loss of his job would subvert the purposes for which the unemployment compensation law was enacted.

The employer has a legitimate right in the furtherance of its interests to establish reasonable attendance rules for employes. To be absent five consecutive work days is substantial. The employer was under no duty to grant a leave of absence.

In this case the law (statutory and case) and the facts establish that the employe's absence from work was misconduct. He wilfully committed an act causing his incarceration. His actions evinced a wanton disregard of his employer's interests. His behavior was culpable. The consequence was foreseeable.

The Commission therefore finds that in week 2 of 1990, the employe did not voluntarily terminate his employment with the employer, within the meaning of sec. 108.04 (7)(a), Wis. Stats.

The Commission further finds that in week 2 of 1990, the employe was discharged from his employment by the employer and that the discharge was for misconduct connected with his employment, within the meaning of sec. 108.04 (5), Wis. Stats.

DECISION

The decision of the Appeal Tribunal is modified and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 1990, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equalling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed November 20, 1990.
115 : CD0626  MC 626 MC 605.091

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

cc:
Darrell W. Foell, Attorney
c/o/ Universal Foods Corporation

Universal Foods


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