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

JEFFREY A WILSON, Employee

REINKE SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600504MW


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 approximately five years as a general mechanic and attendant for the employer, an auto repair and service station. The employee's last day of work was November 29, 2001 (week 48).

On November 29, 2001, things were slow at the shop. The owner and a co-worker were cleaning the premises, including washing windows, while the employee sat and read the paper. When the owner came to the front of the station near where the employee was sitting, the employee inquired whether the owner wanted him to move or to move some things away from the windows so that the owner could more easily wash the windows in that area. The owner responded by stating that the employee should just go home. When the employee inquired further, the owner again told him to get out of the shop, punctuated with an expletive. The employee left and did not again contact the employer about returning to work.

This is not the first time such an incident had occurred. The employer had ordered the employee out of the shop on other occasions but had always called the employee back. This time the owner did not call the employee back and the employee assumed he was fired despite failing to inquire whether he was still employed after leaving the shop on November 29, 2001.

The initial issue is whether the employee quit or whether the employer discharged the employee. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

Ordinarily, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177, 187(1961). Furthermore, the courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that he is fired. An employee owes a duty to definitely ascertain what his employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Dane County Circuit Court, Case No. 116-225, January 5, 1966 and Leo N. John vs. DIHLR & Julian Galst, et. al., Dane County Circuit Court Case No. 134-448, February 23, 1973.

Here, the owner's statements were made in the heat of the moment, in response to an employee who was not only not working but in the way of the owner's cleaning. The owner's order to get out of the shop could have easily meant only for the afternoon. Nonetheless, the employee just assumed the owner fired him and had no further contact with owner to discuss his employment status even though previous incidents indicated that the owner always patched matters up with the employee. Any doubts the employee may have had concerning his employment status could have been easily resolved with a phone call inquiring about his status or by showing up ready to work on his next scheduled day. The employee's failure to contact the employer and report for work after November 29 was conduct inconsistent with the continuation of the employment relationship and constituted a quitting within the meaning of Wis. Stat. § 108.04(7). Furthermore, the employee's reasons for quitting do not meet any exception to the quit disqualification found at Wis. Stat. 108.04(7)(a), given all the employee had to do to maintain the employment relationship was to clarify its status.

Therefore, the commission finds that in week 48 of 2001, the employee terminated his employment but not with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b), or within the meaning of any other statutory exception that would allow payment of benefits.

The commission further finds that the employee was paid benefits amounting to $4723, for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a) the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat.
§ 108.22 (8)(c)2.


DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 48 of 2001, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting, equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $4723 to the Unemployment Reserve Fund.

Dated and mailed July 31, 2002
wilsoje . urr : 135 : 3  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION


The commission conferred with the ALJ as to his credibility impressions. During this credibility conference, the ALJ recalled the case and explained that he found the employee more credible than the employer. The commission does not disturb any credibility findings by the ALJ but rather reaches a different legal conclusion when applying the law to the facts at hand. The commission believes the employee had an obligation to ascertain the status of the employment relationship rather than assuming the employer discharged him after the owner's outburst.


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