PETER L CRAIGG, Employee

RED LOBSTER & THE OLIVE GARDEN, Employer

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:

The employee worked for the employer, a restaurant, for two and a half years as a dishwasher. His last day of work was February 7, 2001 (week 6).

On February 7, 2001, the employee was incarcerated for driving a vehicle after license revocation. The employee had earlier informed the employer that there was an arrest warrant out for him, and that if he got pulled over he was going to "do some time." The employee testified that his mother provided the employer with notice of his incarceration. However, when the employee was ready to return to work on March 26, the employer stated that it could not wait for him and indicated that he no longer had a job.

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

The concept of voluntary termination is not limited to the employee who says, "I quit." Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119, 287 N.W.2d 763 (1980). Rather, the courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson, 94 Wis. 2d at 119; Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

In this case, the employee deliberately engaged in conduct which he knew could result in his incarceration and, thus, his prolonged unavailability for work. The employee's actions were inconsistent with a desire to continue the employment relationship. The commission, therefore, concludes that the employee was the moving party in the separation when, in effect, he abandoned the job.

Having concluded that the employee quit, the next question to decide is whether his quitting fell within any statutory exception permitting the immediate payment of benefits. The employee's quitting under the circumstances described above does not fall within any of the enumerated exceptions.

The commission therefore finds that in week 6 of 2001 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 employee was paid benefits in weeks 13 through 32 of 2001 in the total amount of $2,980, 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 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2001, 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 four times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $2,980 to the Unemployment Reserve Fund.

Dated and mailed August 23, 2001
craigpe . urr : 164 : VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is not the result of a differing assessment of witness credibility, but is as a matter of law based upon the uncontroverted testimony in the hearing record.

cc: Red Lobster & The Olive Garden - Wauwatosa, WI

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/08/27