BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benfit claim of

LUELLA MIDDLETON, Employee

Involving the account of

JOHN EMIL BRENNAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-602304 MW


A Department Deputy's Initial Determination issued on March 25, 1989 held that the employe terminated her work with an employing unit in week 5 of 1989, but not within any of the exceptions in the statutes which would permit the payment of benefits. As a result, benefits were suspended.

The employe timely appealed the Initial Determination, and a hearing was held on April 20, 1989 before Administrative Law Judge Stephen L. Koenig, acting as an Appeal Tribunal for the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on December 12, 1988, modified the Initial Determination to find that the employe did not voluntarily terminate her employment in week 5 of 1989 but that the employe was terminated for misconduct connected with her employment in week 15 of 1989. As a result, benefits were denied.

The employe timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and the applicable law, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked providing domestic services in the home of the employer, John E. Brennan, who suffers from Parkinson's disease and requires personal care services. The employe was supervised by the employer's wife, Marline Brennan. The employe worked on a regular schedule for the employer from October of 1986 until February 2, 1989 (week 5) . On that day she was arrested by Fox Point Police at the employer's residence and placed in jail. She was subsequently transferred to the Racine County Jail. She remained incarcerated until March 1, 1989. Thereafter, she next performed services for the employer on March 18 and 19, 1989 (weeks 11 and 12) and April 10, 1989 (week 15). She did not work for the employer thereafter.

The issue to be resolved is whether the employe voluntarily terminated her employment or was terminated by the employer, and, in either case, whether the circumstances of her separation from employment allow payment of benefits.

Some time in late 1988 the employe made a purchase at an estate sale by way of a personal check This check was returned to the payee, the Purple Ticket Auction Service ("Purple Ticket"), by the bank because the employe's checking account had been closed. Purple Ticket commenced collection efforts against the employe and there was also a municipal forfeiture proceeding concerning the check in connection with which the employe was fined $150. Apparently, a condition was also imposed on the employe according to which she was required to make good the debt to Purple Ticket.

In December 1988 the employe obtained an advance on her salary of $250 from Marline Brennan. The employe told Brennan that she was going to use the advance to pay the debt to Purple Ticket. However, unbeknownst to Brennan, the employe did not pay that debt with the money Brennan advanced her.

In January 1989 the employe obtained another advance on her salary from Brennan, of over $1,000, to help her pay rent and car expenses. It was arranged between Brennan and the employe that this would represent an advance of her entire salary for February and March 1989.

The employe was arrested by Fox Point Police on February 2, 1989 at the residence of the employer in connection with her failure to pay the debt of $250 to Purple Ticket. The employe contacted the daughter-in-law of Marline Brennan and had her come to the house to be with the employer. Marline Brennan discovered the fact that the employe had been arrested when she returned home after doing errands that day and found her daughter-in-law there.

The employe was taken to the Fox Point Police station, where it was discovered that she was on probation from Racine County and that her arrest violated the terms of her probation. The employe was subsequently transferred to the Racine County jail. She spoke to Brennan on the phone that day and told her that she might be incarcerated for up to 2 years. Brennan began seeking a permanent replacement for the employe.

By no later than February 4, 1980, Marline Brennan found out, apparently through conversations with the employe's daughter, that the employe had not in fact paid the debt to Purple Ticket, which Brennan had advanced the employe money to pay off in late 1988, and that this failure to pay had caused her arrest. Brennan again advanced money to pay this debt on behalf of the employe, this time issuing a check made payable directly to Purple Ticket. The check was given to Purple Ticket by the employe's daughter.

During the period of her incarceration, the employe made a number of attempts to contact Marline Brennan by telephone, by placing collect calls to the Brennan's residence. Brennan refused to accept the charges on these calls.

The employe was released from jail on March 1, 1989. She did not contact Brennan until mid-March, which was the first time that Brennan learned she had been released. By this time Brennan had obtained a replacement for the employe. The employe asked Brennan about the possibility of her working weekends to pay off the salary advances which Brennan had previously given to her, indicating to Brennan that her counsellor had suggested that this would be a good thing to do. Brennan agreed to allow the employe to work for her on weekends, without pay, to pay off the salary advances which Brennan had earlier made to her. Pursuant to this agreement, the employe worked for the employer on the weekend of March 18 and 19, 1989 (weeks 11 and 12).

The employe's daughter, Lisa, had been working on a part-time basis for the employer for some time, working evenings from 6 to 10 p.m. The daughter was scheduled to work on March 22, 1989. The daughter was attending nursing school and also working at another job in a nursing home, and she discovered that on the evening of March 22, 1989 she had an important meeting in connection with her other job. She therefore arranged with her mother that her mother would take care of her shift that night. The daughter informed Mrs. Brennan of this, and it was agreeable to Mrs. Brennan. However, shortly before March 22, 1989 the employe received a notice from the local Unemployment Compensation Office informing her of the fact that the employer was contesting her claim for unemployment compensation benefits, which had been filed prior to that time. Because of this, the employe did not appear to care for the employer on the evening of March 22, 1989 as it had been arranged for her to do. She did not call Mrs. Brennan, or her daughter, to tell either of them that she would not be appearing to cover her daughter's shift that evening.

Although the employe had previously arranged with Mrs. Brennan that she would work weekends to make up the salary advances which Brennan had paid her, she did not appear to work on any of the three following weekends.

On April 10, 1989 (week 15), the employe called Marline Brennan on the telephone, crying, and she requested that she be allowed to come in and work that evening. Mrs. Brennan reluctantly agreed. However, that evening, after the employe worked four hours, Brennan told the employe that the relationship would have to end because the employe had not been reliable and had not kept up with the Saturday and Sunday work assignments that she had said she would undertake to pay back the salary advances.

The first issue presented for decision is whether the employe voluntarily terminated her employment when she was arrested on February 2, 1989. Her actions, in obtaining an advance on her salary based on a representation that it would be used to pay a. specific debt which the employe was aware might lead to arrest if unpaid and then not paying that debt with the advance, and her absence from work due to her resulting incarceration, were acts in disregard of the employer's interest, but they were not undertaken with an intention to voluntarily terminate the employment relationship nor were they so inconsistent with the continuation of the employer-employe relationship that they could be considered to have been equivalent to a voluntary termination of employment.

The next issue presented for decision is whether the employe was discharged for misconduct connected with her employment. In order to resolve this issue it is necessary to decide, if the employe was discharged, when the discharge occurred.

The Commission concludes that the employe was discharged in the week of her arrest. At that time, Brennan found out that the employe was unavailable for work because of her arrest, that she could be incarcerated for up to 2 years, and that the reason for her arrest was her failure to pay the debt that the employe had some months before told her she would pay with the money Brennan advanced her for this purpose. Brennan began seeking a replacement for the employe at this point. Both Brennan and the employe understood that the employment relationship was over. The Commission considers that, in these circumstances, Brennan terminated the employe. It is therefore necessary to determine whether the employe was terminated for misconduct connected with her employment.

The Commission concludes that the employe was terminated for two principal reasons. One was her unavailability due to her incarceration, and the other was her conduct in obtaining an advance on salary of $250 based on the representation that she would use it to pay the debt from the NSF check and then not paying that debt. Either one of these is adequate to establish misconduct.

In Jackson v. LIRC and J. I. Case Co., (Racine Co. Cir. Court No. 82-CV-1331 2/16/83), the court affirmed the Commission's decision that an employe was discharged for misconduct connected with his employment where the employe's discharge was precipitated by his absence and unavailability for work caused by an arrest. The employe, who was on probation, engaged in illegal conduct (reckless use of a weapon) which, although it was not related to his employment, had the foreseeable result of leading to his arrest and incarceration, which in turn led to his not being able to report to work. The court agreed that this was misconduct because, although the ability to report to work was beyond the employe's control by the time he was arrested, the critical time was when the employe made the decision to engage in the illegal conduct which had the forseeable consequences of arrest and inability to work. The situation presented here is virtually identical. The employe here rendered herself unable to work by failing to pay the debt in question, even when she had the money to do so, when it was forseeable that her failure to do so would result in her arrest and make her unable to work, and, significantly, unable to provide the services representing the salary she had already been advanced.

The employe also abused the trust and generosity of the employer by obtaining an advance on salary of $250 based on a representation that she would use it to pay a specific debt and by then not using the advanced money for that purpose. The employer may well have been partly motivated, in advancing the money, by a desire to see to it that the employe was not jailed and was thus able to continue providing services. The employe's misuse of the advanced money came close to, if it did not amount to, a fraud on the employer. It constituted misconduct connected with her employment.

Well after the discharge of the employe in February 1989, and after her release from incarceration, the employment relationship was again established, albeit briefly. The employer, who had advanced the employe her salary for February and March, agreed to a plan proposed by the probation counselor to allow the employe to work on weekends, without pay, to make up the advanced salary. This reestablished employment relationship also ended in termination, again for misconduct.

After agreeing to work for the employer on the evening of March 22, 1989, she failed to appear for work without excuse or notice to the employer in response to her discovery that her unemployment benefit claim was being contested. Additionally, despite an earlier agreement to work weekends in order to try to make up the salary which had been advanced to her, the employe failed to appear for work on a number of weekends. Although Marline Brennan allowed the employe to work on April 10, 1989, when the employe called her and asked in tears to be allowed to work, Brennan terminated the employment relationship at the end of that evening based on the unreliability of the employe. After the incidents of February 2, 1989 (an absence from work forseeably caused by the employe's failure to pay a debt), March 22, 1989 (an absence from work without excuse or notice), and subsequent weekends (a failure without notice or excuse to work weekends previously agreed to), it is understandable that Marline Brennan decided that she could not continue her new relationship with the employe whereby the employe worked weekends to make up for advanced salary.

The Commission therefore finds that the employe did not terminate her employment in week 5 of 1989 within the meaning of section 108.04 (7)(a) of the Statutes, but that she was terminated in week 5 of 1989 for misconduct connected with her employment within the meaning of section 108.04 (5) of the Statutes. The Commission further finds that after a reestablishment of the employment relationship in week 12 of 1989 the employe was again terminated, in week 15 of 1989, for misconduct connected with her employment within the meaning of section 108.04 (5) of the Statutes. The Commission further finds that the employe was paid benefits in the amount of $200 per week for each of weeks 11 through 14 of 1989, amounting to a total of $800, for which she was not eligible and to which she was not entitled, within the meaning of section 108.03 (1) of the Statutes, and pursuant to section 108.22 (8)(a) of the Statutes, she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is modified as to week of issue and, as so modified, is affirmed. Accordingly, benefits are denied based on work with the employing unit. The employe is also ineligible for benefits based on work by other employing units beginning in week 5 of 1989, and until she has again worked within at least seven weeks in covered employment and has earned wages for work actually performed in covered employment equaling at least 14 times her weekly applicable benefit rate with the employer against whom benefits would otherwise be chargeable. She is required to repay the sum of $800 to the Unemployment Reserve Fund.

Dated and mailed June 15, 1989
110 - CD0477   MC 605.091

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


NOTE: The Commission agreed with the conclusion of the Administrative Law Judge that the actions of the employe amounted to misconduct. However, the Commission concluded that the employe was actually discharged at the time of her arrest (and the employer's discovery that she had not used the $250 salary advance for the promised purpose). The Commission has not arrived at this different conclusion due to any disagreement with the Administrative Law Judge concerning the material facts as he found them; the Commission considers its decision on this point to have been based on a different view of what legal conclusion should attach to these facts. As the Administrative Law Judge found, the employer refused to accept collect telephone calls from the employe after February 2, 1989, and made efforts to replace her. Also as he found, an employment relationship arose again when the employe approached the employer and requested to be allowed to work a limited weekend shift. Particularly considering Exhibit 1, a statement written by Marline Brennan on March 15, 1989 (before the employment relationship again arose), it is apparent that Brennan considered that the employment relationship had ended. As the Administrative Law Judge found, the employe considered that the employment relationship had ended. In these circumstances, the appropriate conclusion was that there had been a termination of the employment relationship. The Commission agreed with the Administrative Law Judge that the employment relationship that subsequently arose was terminated on April 10, 1989 because of the employe's misconduct, that being continued unreliability in appearing for work.

The stated effects of this decision are based on the provisions of Wisconsin Statutes Chapter 108 that are in effect as of this date. If any employment affected by this decision becomes base period employment for a new claim beginning April 2, 1989 or later, the provisions of the Unemployment Compensation Law recently enacted (1987 Act 38 and 1987 Act 255) will apply.

cc: 
Lon D. Moeller, Attorney
Davis & Kuelthau


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