JOSEPH W MIER, Employee

ADECCO NORTH AMERICA LLC, Employer

On February 1, 2002, the Department of Workforce Development issued an initial determination which held that the employee was discharged but not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on May 28, 2002 in Eau Claire, Wisconsin before a department administrative law judge. On May 31, 2002, the administrative law judge issued an appeal tribunal decision amending and affirming the initial determination. The employer 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 at several assignments for the employer, a temporary help agency. The employer purported to discharge the employee on April 10, 2001 (week 15), for failure to have reported to the employer several absences the employee had had in the previous four weeks. The commission agrees with the appeal tribunal that the employee's failure to report the absences to the employer was not so grave as to constitute misconduct for unemployment insurance purposes. However, the commission finds that the employee's failure was with knowledge of the reporting requirement, and as such was conduct inconsistent with the continuation of the employment relationship (and therefore a quit of employment under Wis. Stat. § 108.04(7)(a)). The commission therefore reverses in part the appeal tribunal decision.

The employee first began working for the employer in April of 2000. At that time, he signed a "Commitment Sheet," one provision of which requires employees to contact the employer when they will be late or unable to report to work for any reason. The sheet further informs employees that the employer will then contact the client, and also that failure to contact the employer may result in "a voluntary quit and/or termination."

The employer removed the employee from a May 2000 assignment, due to the employee's absenteeism. At this time the employer told the employee that if he was sick while on an assignment (and so unable to report to work for the client to whom he was assigned) he should inform the employer so the employer could then contact the client. On January 26, 2001, the employer again spoke with the employee about the employee's attendance, reminding the employee generally that he would have to follow the employer's rules and regulations in order to be able to remain on assignments.

The employee began working at a client on March 13, 2001 and, in the four weeks of the assignment, was absent due to illness on four occasions. The employee gave the client notice of the absences, but not the employer. On April 10, the client contacted the employer and told the employer it no longer wanted the employee to work for it. At this point, the employer purported to discharge the employee.

A quit under Wis. Stat. § 108.04(7)(a) includes conduct inconsistent with the continuation of an employment relationship. The employee's failure to give the employer notice of his absences from his assignment at the client is properly characterized as such. The employee knew he was obligated to contact the employer when he would be absent from an assignment. In addition to the instruction on the Commitment Sheet, the employee had received specific counseling in May of 2000 that he was to report absences to the employer, and general counseling in January of 2001 that he had to follow the employer's rules and regulations. The employee also knew or should have known that failure to follow those regulations could result in the employee's loss of employment with the employer. Given these factors, the employee's failure to give the employer notice of his absences constitutes conduct inconsistent with the continuation of the employment relationship. As such, it is a voluntary quit under Wis. Stat. § 108.04(7)(a), and the commission so finds. The employee has not asserted, finally, that the separation was due to an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a).

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 15 of 2002, 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. Department records indicate that the employee met the requalification requirements as of the time he initiated his claim for unemployment insurance, week 50 of 2001.

Dated and mailed November 22, 2002
mierjos . urr : 105 : 1 VL 1001.09  VL 1025 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

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 has made essentially the same factual findings as did the administrative law judge, so the commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission believes that the employee's failure to give the employer notice of his absences was conduct inconsistent with the continuation of the employment relationship and, as such, a quit under Wis. Stat. § 108.04(7)(a).

cc: Adecco North America, LLC (Eau Claire, Wisconsin)

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uploaded 2002/12/03