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

MARKRELLUS D WARE, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606760MW


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 has worked for about a year in several capacities for the employer, a temporary help agency. He is currently employed by the employer.

The issue to be resolved is whether the employee voluntarily terminated his work with the employer in week 24 of 2001, and if so, whether such termination fell within any of the exceptions that would allow for immediate benefit payment.

The employee was given an assignment that ended on June 7, 2001 (week 23). On June 7, he was offered an assignment but then learned the next day that the assignment was already taken. On June 8 he was offered a position that was to begin on the following Monday, June 11 (week 24) but the employee believed that this second assignment was not on the bus route. He also thought that the reason he refused it was that his car was unreliable. Thus, the employee refused this assignment. The employer's policy informs the employee that if he did not accept scheduled work he would be considered to have voluntarily terminated his employment with the employer. The employee believed his car was unreliable but conceded that it was working. Therefore the employee should, have either explained the situation to the employer or accepted the position. The employee's actions in refusing the assignment, were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quitting.

The employee has not demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 24 of 2001, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in week 24 through 32 of 2001, totaling $2,025.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), 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)

DECISION

The decision of the administrative law judge is amended as to the week of issue and as amended is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2001, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,025.00 to the Unemployment Reserve Fund.

Dated and mailed December 21, 2001
warema . urr : 145 : 8  VL 1025  VL 1015.01  VL 1035 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found the employee to be credible when he indicated that someone else was given the assignment, and that he did not have a strong recollection of the credibility of the employer's witness. The ALJ did state that the employee may have been confused because there appeared to be two different situations. However, the employee's testimony agreed, in large part, with the employer's records of the events of June 7 and 8. Because the employee refused to accept the second assignment, the commission concludes that he quit his employment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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