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

BARBARA L COBB, Employee

DENNYS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01005193


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 about two months as a server for the employer, a franchise restaurant. Her last day of work was on or about May 30, 2001 (week 22).

The issues to be resolved are whether the employee voluntarily terminated her employment or was discharged by the employer, and whether she is eligible for benefits based on her separation from employment.

On May 30, the employee presented the employer with a note from her doctor, stating that she was to be off work for one week. The note did not contain a diagnosis. On June 11, the employee presented a note releasing her to return to work, and she was put back on the schedule. However, before she could resume work, she provided a statement from another doctor taking her off work indefinitely. That became effective on June 13, 2001 (week 24). On July 12, 2001 (week 28), the employer considered the employee's employment to have ended based on her continued absence.

The employer contended that the employee quit her work, while the employee contended that she had been discharged. The employee's position is the more persuasive.

The employer never advised the employee when she presented her medical excuse that either the diagnosis was insufficient or that it needed periodic updates at specified intervals as to her ongoing medical condition. The employer never advised the employee when she presented the medical excuse that she was required to request a leave of absence. Indeed, the employer did not have a leave of absence policy. The employee's failure to inquire as to a leave of absence policy did not result in the end of her employment. The employer made a decision that the employee's absence had extended for too long a period. The employee had no indication that the employer considered her extended absence, supported by medical documentation, to constitute a voluntary termination of her employment. There is no evidence that the employee engaged in conduct that evinced an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 28 of 2001, employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning week 28 of 2001, if she is otherwise qualified. She is not required to repay the sum of $1500.00 to the Unemployment Reserve Fund.

Dated and mailed January 17, 2002
cobbba . urr : 132 : 3 :  MC 626 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION


The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ did not base her decision on credibility but on her belief that the burden was on the employee to maintain the employment relationship. However, the employer never advised the employee that it considered her medical documentation insufficient, that she was required to submit additional documentation, or that it expected her to contact it within specified periods or intervals in the future. The commission does not find that there was any intent on the part of the employee to quit or that she engaged in conduct that was inconsistent with continuing employment.


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uploaded 2002/01/25