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

MARSHALL E STOKES, Employee

SITE TEMPORARIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606930MW


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 for the employer, a temporary help agency, for approximately four months. His most recent assignment was as a forklift driver. His last day of work was June 19, 2001 (week 25).

The employee missed work on June 20, 21, and 22, 2001 because he was incarcerated. The employee explained that there had been a warrant out for his arrest for driving after license revocation and failing to pay the $125 fine. He indicated that he could have paid the fine, but just let it slide. The employee did not contact the employer while he was incarcerated. When the employee was released from jail he telephoned the employer and was informed that the employment relationship had been terminated.

The 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 unavailability for work. Moreover, the employee failed to provide the employer with notice of his absences. The employee's actions were inconsistent with a desire to continue the employment relationship, and the commission concludes that the employee effectively abandoned the job when he was absent three consecutive days without notice to the employer.

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 25 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 25 through 27 of 2001 in the total amount of $349, 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.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 25 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 $349 to the Unemployment Reserve Fund.

Dated and mailed December 14, 2001
stokema . urr : 164 : 1 VL 1001.09  VL 1007.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility. The administrative law judge stated that she found the employee to be credible and believed his girlfriend contacted the employer to report his absences. However, while the employee testified that he instructed both his brother and his girlfriend to contact the employer on his behalf, neither individual appeared at the hearing, and the employee had no personal knowledge that the contact was ever made. The employer alleged that it did not receive notice of the employee's absences, and the employee offered no competent evidence establishing otherwise.

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.


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