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

JOSEPH P HAYES, Employee

TRINITY TRANSFER CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601478WB


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 in two periods of employment for the employer, a trucking business. His job was as an over-the-road driver. His last day of work was on October 15, 2000 (week 43) when he was involved in an accident with the employer's truck and trailer. After the accident, the employee was unable to work. He was released to work January 3, 2001 (week 1).

The issues are whether the employee quit, or if the employer terminated the employee's employment. If he quit, the second issue is whether he quit for a reason that would allow payment of unemployment insurance. If he was discharged, the second issue is whether he was discharged for misconduct connected with his work.

The employee notified a secretary at the employer of his release to return to work. The secretary told him his tractor was in New York. She asked him to fax his release to work with the employer. On January 15, the employer asked the employee to bring his personal belongings to work. When he arrived at work the employer assigned him to a different truck than the one he had before and the employee put his things in the truck. The employer told him the truck still needed repair and would be ready as soon as UPS brought the part. The employer showed him the trailer and told him what the problem was. The employee came in the next day (week 4), and when he learned the trailer was not repaired he got upset and told the employer he could not wait any longer. He got his personal belongings and left. He then filed an unemployment claim on January 17. His actions in so doing were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quitting.

The employee had been off work for a significant amount of time because of his work injury. It was reasonable for the employer to have its trucks on the road. It was not known when the employee would be released to work so the delay in finding a truck for him to drive was reasonable. When the employee's doctor released him to work, he contacted the employer and was told a truck was in New York but would be ready soon. There were problems with the truck the employee was to drive but the employee had been assured that he would be put back to work as soon as parts arrived to repair the trailer. He was asked to bring his belongings and put them in the truck. He was shown the truck he would be driving and the problem with it was specifically explained to him. While a layoff for an indefinite time might be considered a discharge, in this case the layoff could reasonably be expected to last no more than a few weeks. In Hemstock Concrete Products, Inc. v. LIRC, 127 Wis.2d 437 (Ct. App. 1985) the court held that the presumption the employment relationship has been severed by a layoff can be rebutted by evidence that at the time of layoff the employer assured the employee, either expressly or by implication that he would return to work in the near future. That is exactly what happened in this case. While the employee was naturally eager to return to work, the employee could have filed for benefits during the layoff period, and would have had at least some income during the time the truck was being repaired. Instead the employee chose to quit his employment with the employer, by refusing to wait a few more days for the truck to be repaired. The employer's actions under the circumstances were not so unreasonable as to amount to good cause attributable to the employer for quitting.

The commission therefore finds that, in week 4 of 2001, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in weeks 7 through 21 of 2001 totaling $6260, 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), 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 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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2001, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $6,260.00 to the Unemployment Reserve Fund.

Dated and mailed July 6, 2001
hayesjo . urr : 145 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ thought that the employee believed that the employer was stalling, and the ALJ agreed with the employee. The ALJ noted that the employer kept putting the employee off, and for example, stated at the hearing that the truck was fixed on January 15, when the employer later indicated it was not. The ALJ noted that the employee had a worker's compensation injury and thought the employer might fear he would have another claim. He also noted that the testimony of the witnesses appeared forced. However, the commission concludes that the employer intended to return to the employee to work, for the reasons set forth in its decision. Further, the commission concludes there was insufficient reason for the employee to reach the conclusion that he had been discharged, in light of the employer's assurances and that his actions were inconsistent with the continuation of the employment relationship.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.


N.B. The decision as it is reproduced here incorporates minor corrective amendments made by the commission on July 31, 2001.

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uploaded 2001/07/09