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

MARY L LIVINGSTON, Employee

L & D TRADING POST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200117EC


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 for the employer, a grocery store, for about six months as a cashier, stocker, bagger, and cleaner. Her last day of work was November 16, 2001 (week 46).

The employer's store is located on an island, and in addition to her salary, the employer provided the employee with packets of boat tickets to get to and from work. The store is co-owned by a husband and wife, Lori and Dave Hinrichsen. Mr. Hinrichsen is the president, and Mrs. Hinrichsen is vice-president of the business.

In October of 2001, during a trip to Duluth, Mr. Hinrichsen revealed to his wife that he was having an affair with the employee. Mrs. Hinrichsen stated, "You know the employee is gone as soon as I get home, and if you're smart you'll get rid of her before I get there." The Hinrichsens returned from their trip on November 15, 2001. When the employee reported for work the following day, Mrs. Hinrichsen told her, "I want your keys and your boat tickets on the counter right now." The employee returned her keys and boat tickets, collected her things and left. She did not return to work thereafter.

The issue to be resolved is whether the employee's separation from employment was a quit or a discharge and whether she is eligible for benefits based on that separation.

Mrs. Hinrichsen testified that she was not firing the employee, but wanted her to turn in her keys and boat tickets because she did not trust her. However, a demand that an employee turn in her keys is tantamount to telling the employee she is fired, and if the employer intended something different it should have made this clear. Eiler v. Shoney's Restaurant, (LIRC, Oct. 26, 2001). In this case, the employee was justified in construing the employer's demand that she turn in her keys and boat tickets immediately to mean she was discharged. Moreover, it should have been clear to the employer that the employee regarded herself as having been fired when she collected her things and left, and if the employer had other intentions, it should have explained this to the employee at that time. Indeed, the commission is satisfied that the employer did intend to discharge the employee. It seems unlikely that Mrs. Hinrichsen would have wanted the employee to remain working after discovering she was having an affair with her husband, and her actions in requesting the employee's keys and boat tickets were consistent with her statement that, as soon as she returned from Duluth, the employee would be gone.

Having concluded the employee was discharged, the remaining question to resolve is whether her discharge was for misconduct. The employee was discharged for having engaged in a consensual relationship with the employer's president. While the wife of the employer's president had reason to be displeased with the situation and to sever the employment relationship, the commission is unable to find that the employee's conduct evinced a wilful and substantial disregard of the employer's interests where the employer's co-owner and president was himself a participant in the relationship.

The commission therefore finds that in week 46 of 2001, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2001, provided she is otherwise qualified. She is not required to repay the sum of $1,353 to the Unemployment Reserve Fund.

Dated and mailed June 13, 2002
livinma . urr : 164 : 8 MC 626 VL 1007.01 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she found credible Mrs. Hinrichsen's testimony that she did not intend to fire the employee. However, as set forth in the body of the decision, the commission concludes otherwise. Moreover, even if Mrs. Hinrichsen did not intend to sever the employment relationship, the employee was justified in concluding that she had been discharged.


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uploaded 2002/06/18