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

ALLEN F HOFER, Employee

BURBACH AQUATICS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400198MN


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed.  Accordingly, the employee is ineligible for benefits beginning in week 51 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.  The employee is required to repay the sum of $2,421 to the Unemployment Reserve Fund.

Dated and mailed May 24, 2002
hoferal . usd : 105 : 1  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of quit.   There is no dispute as to the employer's having purported to discharge the employee.  Nonetheless, a quit for unemployment insurance purposes includes conduct by an employee inconsistent with an intent to maintain the employment relationship.  The commission believes the employee engaged in such conduct.  First, the commission does not credit the employee's denials of wrongdoing with regard to his incarceration.  The employee had to know that that would have a significant adverse impact upon his ability to perform services for the employer.  Second, the employee failed to directly contact the employer during his period of incarceration.  Again, the commission cannot credit his explanation that he was unable to do so.  These failures by the employee were conduct inconsistent with an intent to maintain the employment relationship, however, and as such a quit under Wis. Stat. ยง 108.04(7)(a).  For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision. 


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