STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MARGARET J JORDAN, Employee

Involving the account of

PERSONNEL ALTERNATIVES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93610008MW


The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 47 of 1993, the employe terminated her work with the employer and that her quitting was not within any of the exceptions in the statutes which would permit immediate benefit payment. As a result, benefits were suspended. That determination resulted in an overpayment in the amount of $325, which the employe was required to repay. The employe filed a timely appeal to an appeal tribunal. On January 20, 1994, the appeal tribunal issued a decision which reversed the initial determination and found that the employe did not voluntarily terminate her employment. As a result, benefits were allowed and no overpayment resulted. The employer filed a timely petition for commission review of the adverse appeal tribunal decision.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe was laid off from a full-time position on October 1, 1993, and expected to be called back to that position in January of 1994. The employe worked for the employer for seven days in October setting up presentations at a home show and earning $7 per hour. She next worked for the employer one day, November 16, 1993 (week 47) . She worked from noon to 5:00 p.m. as a receptionist and earned $7 per hour.

On November 17, the employer contacted the employe and offered her an assignment which was to begin the following day, Thursday, November 18, 1993 (week 47). The position was for clerical work earning $7 per hour with the hours of 8:00 a.m. to 5:00 p.m. The employer also informed the employe that the assignment was for 2 and 1/2 weeks with the possibility of becoming a long-term position. Initially the employe informed the employer that she would have to call the employer back because her husband had a doctor's appointment the next week and she needed to determine the date. The employe did not contact the employer so later that day the employer again contacted the employe.

During the second telephone conversation, the employe informed the employer that she needed the following Tuesday off. The employer responded that that would not be a problem. The employe then expressed concerns about taking the new assignment because she was under the impression that the position was a two person office and the other worker was going to be gone most of the time. The employe then told the employer that she was on a work search waiver from the unemployment office and that if her full-time employer called her back she would be returning to work for the full-time employer and may not be able to give the employer any short-term notice that she was leaving. The employer indicated that the employer understood. The employe then told the employer that 1-4 day jobs would be all right. The employer indicated that the employer understood. There was no further conversation regarding the position.

The initial issue to be determined is whether the employe terminated her position with the employer or whether she failed to accept an offer of work.

The general rule is that individuals who are hired for a limited term are laid off when the term of employment expires. In temporary help situations, an exception has been created where workers maybe deemed to have terminated their employment if they are required to contact a temporary help agency upon completion of an assignment but fail to do so. There is no indication in this case that the employe was under such an obligation. Further, there is no indication that the employe was aware upon completion of her assignment on November 17 that she would again be offered work within a specified period of time. Accordingly, it is determined that the employe did not voluntarily terminate her employment but was laid off upon completion of her assignment on November 16, 1993 (week 47). Since the employe was laid off from her position with the temporary help agency, her eligibility for benefits revolves around whether she failed to accept an offer of work from the temporary help employer. The commission determines that she did indeed fail to accept an offer of work.

There is no question but that the employer contacted the employe on November 17, 1993, in order to offer her employment. The employer conveyed to the employe the duties of the assignment, the wage rate of the position, her starting date and the hours of work. Communication of these factors to the employe constituted an offer of work. The employe's numerous responses to the employer's offer clearly imparted to the employer that the employe did not desire to accept the offer. The employe, by placing such obstacles before the employer as her husband's medical appointment the following week, the fact that she did not need to do a work search, the fact that her former employer might call her back to work, and her desire for only 1-4 day assignments, clearly imparted to the employer that the employe did not want the assignment. The employe essentially "blocked" the employer's job offer in this case. When an employe by actions or works dissuades or prevents an employer from offering employment, the employe has in reality refused an offer of work. Robert B Hanson v Syntax Corporation No 1, Commission Decision April 22, 1994.

The final issue to be determined is whether the employe had good cause for failing to accept the employer's offer of work.

First, the employe indicated to the employer that her husband had a medical appointment on the following Tuesday. However, the employer indicated that it would not be a problem for her to take off for her husband's medical appointment. Of course, while the employe did not have to perform a work search because of her anticipated recall to work, that did not justify her refusal to accept an offer of work when such offer was made to her. Further, the fact that the employe anticipated being called back by her former employer in January of 1994 did not prevent her from taking the employer's 2 and 1/2 week assignment. Even if the assignment turned into a long-term assignment and the employe was recalled to work by her former employer, that did not prevent the employe from initially accepting the work. Further, the temporary help employer in this case did not have a problem with the fact that the employe would not be able to provide advance notice of her leaving. Finally, the employe's desire for 1-4 day assignments did not justify her refusal to accept the employer's offer of work. The policy behind the unemployment compensation law is set forth in Roberts v. Ind. Comm., 2 Wis. 2d 399 (1957):

In brief, the purpose of this statute is to stabilize employment and to minimize the loss of income when an employe involuntarily is out of work through the fault or misfortune of the employer. The act was not enacted to provide relief in lieu of wages when reasonable work is available which the employe can but will not do.

The wages, hours (including arrangement and number), and other conditions of the work offered were not substantially less favorable to the employe than those prevailing for similar work in the employe's labor market area; and the employe, as a claimant for unemployment benefits, was not for any other reason justified in failing to accept that work.

The commission therefore finds that in week 47 of 1993, the employe did not terminate her work with the employing unit within the meaning of sec. 108.04 (7)(a), Stats.

The commission further finds that in week 47 of 1993, the employe failed, without good cause, to accept an offer of suitable work, within the meaning of sec. 108.04 (8)(a), Stats.

The commission further finds that the employe was paid benefits in the amount of $547 in weeks 47-51 of 1993, for which she was not eligible and to which she was not entitled within the meaning of sec. 108.03 (1), Stats., and that pursuant to 108.022 (8), Stats., she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, the employe is ineligible for benefits beginning in week 47 of 1993, and until four weeks have elapsed since the end of the week in which the failure occurred and the employe has earned wages in covered employment performed after the week of the failure equaling at least four times the weekly benefit rate which would have been paid had the failure not occurred. She is required to repay the sum of $547 to the Unemployment Reserve Fund.

Benefits otherwise chargeable to a contribution employer's account will be charged to the fund's balancing account whenever an employe of that employer fails without good cause to accept suitable work offered by that employer.

Dated and mailed September 2, 1994
132 : CD8110  SW 800  SW 845.01

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has essentially accepted the findings of fact made by the appeal tribunal but reaches a different legal conclusion when applying those facts to the law.


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