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

CHRISTINA A NEVILLE, Employee

AMERI KING BURGER KING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002564WU


On April 13, 2001, the Department of Workforce Development (department) issued an initial determination finding that the employee's discharge was not for misconduct. Benefits were allowed. A hearing was held on June 11, 2001, before an administrative law judge (ALJ). After conducting the hearing, the ALJ issued her appeal tribunal decision (ATD) on June 15, 2001, reversing the initial determination, finding that the employee quit her employment but not for any reason permitting the immediate payment of benefits. The last day to timely appeal was July 6, 2001. The employee's petition was postmarked July 16, 2001, ten days past the appeal period.

The employee was afforded an opportunity to explain why her petition was late. After considering the employee's explanation, the commission accepts the employee's petition.

The commission therefore considered the petition and the position of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission reaches the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. LATE PETITION

The employee's petition was approximately ten days late. During the 21 day appeal period the employee was undergoing medical examinations and testing for a medical condition that was ultimately diagnosed. The employee contends that she was pre-occupied with her medical illness, losing the hearing and caring for her four children and appealed as soon as she could. In view of the employee's assertions and medical records, the commission is satisfied that the employee's petition was untimely due to a reason beyond her control within the meaning of the statutes. Accordingly, the employee's petition was received and reviewed by the commission.

2. MERITS OF THE EMPLOYEE'S APPEAL

The employee worked approximately nine months as a crew person for the employer, a fast food restaurant. The employee's last day of work was Friday, March 23, 2001 (week 12).

On Friday, March 23 the employee became upset and frustrated at being left alone to wait on customers. Additionally, the employee received contradictory instructions with respect to whether she should put customers at the drive through window on hold. The employer's district manager and operations manager were also present at the restaurant location that day but were unable to discuss the employee's concerns with her.

Just before punching out at the end of her shift the employee told the assistant manager "I quit this BS. I can't take this anymore, things need to change." The employee then punched out and left. The employer's management considered the employee to have quit based on her comments and behavior exhibited on Friday, March 23 at the end of her shift. Consequently the employee's name was removed from the employer's work schedule. The employee did not have any other contact with the employer until she reported to work on Monday, March 26. The employee was dressed in her uniform and when she attempted to return to work on Monday she was informed that the employer considered her to have quit the prior Friday and she was not allowed to return to work.

The employee contends that she did not quit but rather was discharged when she reported to work on Monday, March 26. The employee argues that her statements made on Friday were not intentions to quit. The ALJ however found that while the employee may not have intended her statements to constitute a quitting, her words and actions reflected an intent to quit on Friday, March 23. Under the standard noted in Nottelson v. ILHR Department, 94 Wis. 2d 106 (1980) citing Dentici v. Industrial Commission, 264 Wis. 181 (1953), the commission looks to see whether an employee intends to leave his or her employment as evidenced by word or manner of actions or by conduct inconsistent with the continuation of the employee-employer relationship.

Thus, although the employee may not have believed that her statement "I quit this BS" evinced an intent to quit, the employee's statement coupled with her behavior on Friday, March 23 was inconsistent with the continuation of the employment relationship and constituted a quitting. Although the employee argues that she did not intend to quit on Friday despite her statements and actions the employee simply could have punched out from work, gone home and reported to work on Monday without commenting that she "quit this BS." Furthermore, the employee could have calmly discussed what happened the prior Friday with her supervisors the following Monday. The employee could have also attempted to discuss the matter with upper management on Friday before leaving, despite the employee's complaint that these individuals did not give her eye contact during her shift. After stating that she "quit this BS," the employee had an obligation to see if things could be worked out prior to quitting.

Under the circumstances, the commission agrees with the ALJ's finding and conclusion that the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and that this quitting was not for any reason constituting an exception to the benefit suspension found at Wis. Stat. § 108.04(7)(a).

The commission also notes that it was not established that the overpayment was the result of departmental error since the benefits paid because of the initial determination were made without full information as to the underlying issue or were made based on a differing interpretation of the available information. Thus, the overpayment was not caused by any departmental error and repayment of benefits cannot be waived under the law.

DECISION

The appeal tribunal decision is affirmed. The employee is ineligible for benefits beginning in week 12 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $524.00 to the Unemployment Reserve Fund.

Dated and mailed September 14, 2001
nevilch . urr : 135 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: Ameri-King/Burger King (Wisconsin)


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


uploaded 2001/09/17