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


AUDREY N VEASLEY, Employe

THE HUMAN SERVICES TRIANGLE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606185MW


On September 5, 1997, the Department of Workforce Development issued an initial determination which held that the employe's quit of her employment was not for a reason allowing for immediate eligibility of unemployment insurance. The employe timely requested a hearing on the adverse determination and hearing was held on October 7, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On October 13, 1997, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer timely petitioned for commission review of the adverse appeal tribunal decision. By December 12, 1997 order, the commission remanded the matter for further hearing, which was held on January 13, 1998 in Milwaukee, Wisconsin before a department administrative law judge. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judges who presided over the October 7, 1997 and January 13, 1998 hearings, the commission issues the following : 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately nine months as a house manager for the employer, a community-based residential program for the mentally ill. The employe's last day of work was July 18, 1997, and the issue is whether the subsequent separation was a quit by the employe or a discharge by the employer. The commission concludes that the separation was a quit by the employe, and so reverses the appeal tribunal decision.

As indicated above, the employe's last day of work was July 18, 1997. On July 19, the employer's director spoke with the employe about covering a July 20 shift. The employe agreed to do so, but did not report to work for that shift, or for any thereafter. The director telephoned the employe's mother on July 23 in order to contact the employe, but was unsuccessful, and the employe's mother knew nothing about the employe's absence from work.

Pursuant to Wis. Stat. § 108.04 (7)(a), an employe is disqualified from immediate unemployment insurance eligibility following a voluntary termination of employment, unless the termination meets certain exceptions not relevant in this case. Legally, a quit under Wis. Stat. § 108.04 (7)(a) includes conduct inconsistent with an intent to continue the employment relationship. Simply not coming to work anymore is an example of such conduct, and that is what the record indicates occurred in this case. The employe, despite being scheduled for work on July 20, was absent without notice to the employer and did not again contact the employer thereafter.

The commission therefore finds that, in week 30 of 1997, the employe voluntarily terminated her employment with the employer, but not for a reason constituting an exception to the disqualification of Wis. Stat. § 108.04 (7)(a). The commission also finds that the employe received benefits in the amount of $160 per week for each of weeks 34 of 1997 through 1 of 1998, and $74 for week 2 of 1998, totalling $3274, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because the overpayment resulted from employe fault as provided in Wis. Stat. § 108.04 (13)(f), and was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 30 of 1997, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She must repay $3274 to the Unemployment Reserve Fund.

Dated and mailed :  March 6, 1998
veaslau.urr : 105 : 3 VL 1007.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE :  The commission conferred with the administrative law judges who presided over the hearings in this case. The administrative law judge for the October 7, 1997 hearing indicated that she found the employe to be a credible witness. The employe had testified that she had contacted the employer and had been told by the employer's accountant that her position as house manager had been terminated and that there was no need for her to report to work. Because the employe had not raised this fact in her statement to the department, the commission remanded the case to allow the employer to present testimony from its accountant. At the remand hearing, the employer's accountant credibly testified that he had no conversations with her regarding termination, that has no authority to hire or discharge employes. In addition, the employer's director testified at the original hearing that the penalty for one absence without notice is a verbal warning, which the employer never gave to the employe, and also that the employer had not prepared a termination report for the employe for her July 20 absence, a report the employer is required to file when it discharges an individual. For these reasons, the commission has found that the employer did not discharge the employe, that the employe instead abandoned the employment.


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