MATTHEW A WITUCKI, Employee

THE BUCKLE, Employer

On January 10, 2002, the Department of Workforce Development issued an initial determination which held that the employee quit his employment but not for a reason which would allow immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on February 6, 2002 in Wausau, Wisconsin before a department administrative law judge. On February 8, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked part time approximately four months as a clerk for the employer, a retail concern. His last day of work was on or about February 7, 2001 (week 6), and the issue is whether the subsequent separation from employment was a quit by the employee or a discharge by the employer. In the narrow circumstances of this case, the commission believes the separation is more properly characterized as a discharge than as a quit, and so reverses the appeal tribunal decision.

The employee has worked more than three years, full time, as manager for Ritebrock Trucking and Redi-Mix. This firm hauls concrete for house construction, and so is a seasonal business, generally off mid-December through early to mid-March. There occasionally is some work available during the "off" season, and the employee performs it when the full-time employer calls him about it.

A friend of the employee works for the named employer in this case, The Buckle in Wausau. The friend asked the employee if he wanted to work at The Buckle over the holidays, because she knew he would be laid off from his permanent, seasonal employment. The employee began working at The Buckle in November, working 12 to 14 hours per week there and approximately 35 hours per week at his permanent employment. After the holidays, the employee continued working at The Buckle while on short-term layoff from the employer. At some point in January, however, the employee's schedule from his permanent employment began interfering with his schedule at The Buckle. In the employee's permanent employment, once the season begins, people come in for house bids, for which the employee does estimates. There were occasions he had to tell his supervisor at The Buckle he could not work because he had a main, full-time job. The employee's supervisor at The Buckle talked to the employee several times about the scheduling problems, and indicated that she did not want to be altering his schedule because of his other work. She and the employee agreed it would be less of a hassle for each of them if the employee did not work there anymore. At this point, the employment relationship simply ended. The employee never indicated that he quit the employment; the supervisor never told him he was laid off or discharged.

The dispositive issue is whether the separation was a quit or a discharge. At least two principles suggest that it was a discharge. First, if an employer agrees to lay an employee off, even at the employee's request, the separation is a discharge by the employer. See Greul v. Jim Greeley Signs & Awnings, Inc., UI Dec. Hearing No. 98-001074 (LIRC June 12, 1998); Miller v. ABCO Building Corp., UI Dec. Hearing No. 97-607240 (LIRC February 5, 1998); and Daniel Jandourek v. Rogers Electric, UI Dec. Hearing No. 97401954 (LIRC December 5, 1997). The rationale in these cases is that it is ultimately the employer's choice whether or not to lay off the employee. In the present case, the supervisor's agreement with the employee that the employee no longer work there, is tantamount to the layoffs that occurred in the above-cited cases.

The second general principle applicable asks which party initiated the events leading to the separation. In the present case, the separation resulted from the employee and employer's agreement that the employee not continue working for the employer. The discussion which led to that agreement began, though, with the supervisor's dissatisfaction with the employee's scheduling problems and discussions with him over that issue. For these reasons, the commission concludes that it was the employer who was the impetus for the separation now in issue.

For the above reasons, the commission concludes that the separation in this case was a discharge and not a quit. The employer has not alleged, finally, that the separation was due to any misconduct by the employee.

The commission therefore finds that, in week 6 of 2001, the employee was discharged but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 6 of 2001, if he is otherwise qualified.

Dated and mailed July 25, 2002
witucma . urr : 105 : 1   VL 1007.01 MC 626 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon commission precedent cited in the decision. As such, the reversal is as a matter of law.

cc: The Buckle (Wausau, Wisconsin)

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/07/26