BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

JENNIFER P KNIGHT, Employee

Involving the account of

VERNON MANOR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92002598LX


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested.  The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby.  The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed.  Accordingly, the employe is eligible for benefits in week 16 of 1992, if she is otherwise qualified.

Dated and mailed January 29, 1993.
101 - CD3112  AA 110 AA 128

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

MEMORANDUM OPINION

The Department of Industry, Labor and Human Relations (the Department) appealed this case under sec. 108.09(6), Stats.  The Department requested the Commission to reverse the Appeal Tribunal and find that the employe was on a definite leave of absence in the week at issue here (week 16) based on her request of a single day off, Saturday, April 18, 1992.  The Department contends that the employe's request for time off on April 18 should be treated as a leave of absence for a definite period of time under a policy set out in the Department's benefit operation manual.  The policy cited by the Department states that "when an employe is on an 'on-call' basis and advises the employer that he/she is unavailable for work for the following week, the proper resolution would be leave of absence for a definite period of time." Because the employe testified that she normally worked weekend hours and was "on-call" during the week, the Department contends that the above-stated policy should apply in this case.

The Commission first notes that the policy refers to an "on-call" employe who advises his or her employer that he or she is unavailable "for the following week", not "during the following week".  The policy cited by the Department concerning "on-call" employes, therefore, would seem to apply when an on-call employe asks off for an entire week, rather than on a single day during a week.  Moreover, the hearing testimony indicates that the employe was normally scheduled to work on weekends and so not "on call" on Saturdays.  Thus, although the Department cited a prior case in which the Commission once found a leave of absence was granted for four days, the Commission is not certain that it should deny benefits for an entire week in this case based on an employe's request for a single day off.

Finally, the Commission believes that the Department's policy, to the extent that it is applicable, fails to consider the recent amendment to sec. 108.04(1)(a), Stats., by 1991 Wisconsin Act 89.  That section now allows for a pro rata reduction in the employe's benefits based on wages that he or she could have earned, but was unavailable for, when called upon to perform work available by the employer.  The effect of applying the Department's policy here would be to deny benefits for an entire week when an "on-call" worker requests a day off in advance, while merely reducing benefits by the wages otherwise earnable when a worker simply refuses work when it is offered.  The result reached by the Appeal Tribunal in this case seems more fair, and is a reasonable interpretation of the statutes.

cc:  Glenn E Kelley
      Director, Bureau of Legal Affairs

 


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