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

WADE R SCHENK, Employee

TWEET GAROT MECHANICAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402397AP


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 as a plumber in 17 weeks for the employer, a mechanical contracting construction business. He was scheduled full-time and was paid approximately $25.00 per hour. He drove 60 miles one way to work.

In the employee's last month of employment, he had assigned work sufficient to occupy his time for only about one-half of his shift. He "made work" for the remainder of his shift. He became frustrated with the lack of work, although he was paid even if he was not busy. On May 10, 2002 (week 19), he requested of his supervisor that he be laid off. The supervisor replied, "Okay, I'll let you go." The employee did not return to work for the employer thereafter. He began working for another employing unit approximately three weeks after his last day of work for the employer.

The initial issue to be decided is whether the employee quit or was discharged. 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.

The employer contended that the employee quit his job. Specifically, the employer's representative asserted that the employee told his project manager that he was quitting to start his own business. The employee denied making this statement. The employee admitted that he requested a layoff because he did not believe he had enough assigned work.

"The commission has held that if an employer agrees to lay an employee off, at the employee's request, the employee is discharged. See Miller v. ABCO Building Corp., UC Hearing No. 97-607240 (LIRC Feb. 5, 1998); Daniel Jandourek v. Rogers Electric, UC Hearing No. 97401954 (LIRC Dec. 5, 1997). The rationale is that it is ultimately the employer's choice whether to lay the employee off or not. Here, the employer agreed to lay the employee off. The employee was therefore discharged. The employer had the right to decline to lay the employee off thus leaving it to the employee whether to sever the employment relationship. A mere request to be laid off, however, does not constitute a severing of the employment relationship because it depends on the employer's acquiescence". Alan M. Greuel v. Jimm Greeley Signs & Awnings Inc. (LIRC June 12, 1998).

In this case, the employer agreed to lay the employee off. Therefore, it was the employer that ultimately determined that the employment relationship should end. Therefore, the employer discharged the employee.

The employer has not suggested nor presented evidence to establish that the employee's discharge was for misconduct connected with his work. The commission therefore finds that in week 19 of 2002, the employee was discharged from his employment but not for misconduct connected with his work 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 19 of 2002, if he is otherwise qualified.

Dated and mailed December 4, 2002
schenwa . urr : 145 : 1   MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission did not reverse the ALJ because of a different assessment of witness credibility. Instead, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


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


uploaded 2002/12/13