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


MICHELLE L KOLARIK, Employe

PIERRE PERIODONTAL CLINIC LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402359GB


On September 10, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 34 of 1997 the employe quit her employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On November 6, 1997, the appeal tribunal issued a decision which modified and affirmed the initial determination to find that the employe quit without good cause in week 35 of 1997. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 for the employer, a dental practice, for approximately two and a half years, most recently as a secretary/office manager. In addition, the employe performed cleaning services for the employer. Her last day of work was August 7, 1997 (week 32).

During the course of her employment the employe worked approximately 36-42 hours a week and attended school in the evenings to become a dental hygienist. At least several months prior to the end of her employment the employe put the employer on notice that she was planning on attending school on a full- time basis starting in the fall semester of 1997. The employer's owner, Dr. Pierre, remarked that he hoped the employe would be able to continue helping out part time when that occurred.

In late July of 1997, the employe gave the employer a copy of her class schedule for the upcoming semester, which was to start on August 18. The schedule showed that the employe would be available to work for the employer approximately 17 hours a week from Monday through Friday. In addition, the employe intended to perform cleaning services on the weekends. Dr. Pierre reviewed the schedule when the employe presented it to him and did not make any comment to the employe about it. Subsequent to receiving the schedule the employer notified the employe that her wages would be reduced from $14 an hour to $11 an hour once she began working part time. The employe's part-time status was discussed at a staff meeting, and it was generally understood that the employe would be working on a part-time basis once the fall semester began.

The employe worked for the employer on August 7, then was off for two weeks of preapproved leave. The employe registered for school and purchased uniforms, books, and materials, at a cost of about $3,000 for the semester. She began her classes on August 18. The employe intended to begin her part-time schedule for the employer on Monday, August 25.

When the employe returned home from class on August 21 (week 34) there was a message on her answering machine from Dr. Pierre, informing her that he did not need part-time help and was going to look for a full-time assistant. Dr. Pierre told the employe to give him a call to discuss the situation. The employe attempted to return the employer's telephone call, but was not able to make contact with the employer until August 26 or shortly thereafter, at which point Dr. Pierre told the employe he had heard she was wondering whether she could get a job reference and that he would be more than happy to give her one.

The question to be resolved is whether the employe quit or was discharged and whether she is eligible for benefits based upon that separation.

The employer contended that the employe quit her employment in order to return to school. The commission disagrees and believes the employe was discharged by the employer. The employe had an agreement with the employer that she would be able to work for it on a part-time basis starting on August 25, and the evidence indicates that she intended to do so. However, before the employe was able to begin her part-time schedule, the employer notified her that it did not need a part-time worker and was going to be looking for a full-time assistant. It was this action on the part of the employer, rather than the employe's decision to enroll in school full time, that severed the employment relationship.

In arriving at this conclusion, the commission is cognizant of the fact that the employer asked the employe to call it back to discuss the situation. The appeal tribunal found this factor significant, stating that the employer's message "left the employment door open to the employe." However, the employer did not tell the employe that her status was negotiable, nor did it ask her to reconsider her decision to go part time. To the contrary, the employer's message indicated that it did not need a part-time worker and would be looking for a full-time assistant, suggesting that the employe was to be replaced. The commission construes this statement as a discharge, notwithstanding the fact that the employe was subsequently asked to call back. Moreover, the evidence indicates that the employe did return the employer's call, and the record contains nothing to suggest that during this conversation the employer offered her an opportunity to remain employed. To the contrary, the employer's remarks to the employe appear to have focused upon employment references for her, further suggesting that the employer intended to sever the employment relationship.

Having concluded that the employe was discharged, a final question to resolve is whether the discharge was for misconduct connected with her employment. The employe was discharged when the employer changed its mind about letting her work part time, and not due to any misconduct on her part.

The commission therefore finds that in week 34 of 1997 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is modified as to the week of issue and, as modified, is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1997, provided she is otherwise qualified. She is not required to repay the sum of $282.00 to the Unemployment Reserve Fund.

Dated and mailed: February 3, 1998
kolarmi.urr : 164 : 3  VL 1007

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

As stated in the body of the decision, the commission believes that the employe had every intention of continuing her employment on a part-time basis, as per her agreement with the employer, and that it was the employer's actions in notifying her that it did not need a part-time worker and was going to be looking for a replacement for her that precipitated the separation. The commission wishes to note, however, that even if it were to conclude that the employe quit, it would be compelled to find that she did so with good cause attributable to the employer, such that she would nonetheless remain eligible for benefits. The parties had an understanding that the employe would work only part time as of August 25, 1997, and the employe acted in reliance on this agreement by enrolling in school, purchasing supplies, and beginning her academic program. The commission is of the opinion that the employer's actions in leading the employe to believe it had approved her part-time schedule and then reneging on that agreement several days after the employe's classes had already begun were unreasonable and would have provided her with good cause to quit.

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of witness credibility, but is the result of a different interpretation of the law when applied to essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY WILLIAM HINKFUSS
HINKFUSS SICKEL PETITJEAN & HINKFUSS


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