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

PATTI J KASTEN, Employee

K MART CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606822WK


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 as a seller for the employer, department store, for almost five years. Her last day of work was June 26, 2001 (week 26).

On June 19, 2001 (week 25), the employee indicated a hesitancy to perform the store "cheer" at the end of a staff meeting due to her unfamiliarity with the process. She was sent home and removed from the schedule in the next week. As the employee was unaware that she had been removed from the schedule, she reported as usual on June 26, 2001 (week 26). After a discussion with management, she was advised that she was no longer employed, and left the premises.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

As to the separation causing the filing, the employer contended that the employee had terminated her employment by walking out on June 26, 2001 (week 26) after being requested to conform her actions generally to that of other workers. However, the employee had been sent home as a disciplinary action by the employer on June 19, 2001 (week 25), and removed from the schedule without notice to her that such action was anything other than what it would appear to be, a discharge. The interchange between the parties on June 26, 2001 (week 26) did not restore the employment relationship. Her actions on June 19, 2001 (week 25) in hesitating to participate in the rubric of a cheer she was unfamiliar with, while unsatisfactory behavior, did not amount to misconduct in light of almost five years of otherwise satisfactory performance.

The commission therefore finds that in week 25 of 2001, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The administrative law judge's decision is modified to conform to the foregoing findings and, amended as to the week at issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2001, if she is otherwise qualified. This matter is remanded to the department for an investigation and determination regarding whether the employee's request to reduce her hours in week 22 of 2001, constituted a quitting or implicated any other statutory provision disqualifying her from benefits or reducing benefits due to her.

Dated and mailed November 2, 2001
kastepa . urr : 132 : 8  MC 626  MC 610.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has deleted the administrative law judge's findings regarding a separation in week 22 of 2001 as such separation was not the subject of the initial determination. The commission agrees with the administrative law judge's finding regarding the discharge from employment. However, further exploration of the issue of the separation in week 22 is necessary including whether the reduction in hours was a permanent/indefinite reduction or whether it was a temporary/definite reduction.


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uploaded 2001/11/05