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

ANTHONY L DAUDEN, Employee

P A STAFFING SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603211MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 12 of 1998, if otherwise qualified. The employe is not required to repay the sum of $195 to the department.

Dated and mailed August 28, 1998
daudean . usd : 132 : 6  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment and not for misconduct connected with his work. The employer maintains in its petition, as it did at the hearing, that it was not notified that the employe's assignment had ended until the week following March 20, 1998. However, the administrative law judge did not find the employer's witnesses to be credible. The employe testified that the supervisor contacted the employer on his last day of work. The employer acknowledged that the supervisor contacted the employer that same day. Given the testimony of the employe and the employer, the reasonable inference is that the supervisor did in fact contact the employer and notify the employer of the end of the employe's assignment. Thus, the employer was aware that it needed to offer the employe additional work. This was particularly so in this case since the contact was made while the employe was at the client location.

The employer states that under its policy the employe must notify the employer when an assignment is complete or it will be considered a voluntary termination of employment. However, merely because the employer states that certain acts or omissions will constitute a voluntary termination of employment does not make it so. Each individual case must be examined to determine whether the circumstances show an intent by the employe to sever the employment relationship. It cannot be held that in this case the employe evinced such an intention given that the motivation for not contacting the employer was because the employer had already been notified of the end of his assignment. Certainly, it may be easier to offer the employe additional work when the employe contacts the employer, but it does not prohibit the employer from contacting the employe nor show an intent on the part of the employe to end the employment relationship.

Finally, the employer references statements attributed to the employe when speaking with an adjudicator prior to the hearing that were not introduced at the hearing. The employe acknowledged at the hearing that he previously told a department representative that he did not contact the employer. That is not inconsistent with his testimony at the hearing that demonstrated that the employe's supervisor contacted the employer on the employe's behalf. The other statements attributed to the employe set forth in the employer's petition were not introduced at the hearing and are not evidence. Therefore, the commission cannot consider the same. The essential question is whether the employe, by allowing his supervisor to contact the employer and notify the employer that his assignment had ended, evinced an intent to sever the employment relationship. The commission cannot find that he did.


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I do not believe that this case is resolved by determining when the employer knew that the client had laid off the employe. The employer is not required to call the employe when the employer policy requires the employe to contact the employer and the employe has notice of that policy. Even accepting the employe's version that the client notified the employer about the lay-off I would still find that the employe quit because he did not call the employer immediately after the assignment ended.

There are legitimate reasons for requiring the employe to call the employer. The employe is not required to wait at home for the employer to call to offer a new assignment. It is a waste of resources to have the employer continue to call an employe until they can find the employe at home. There are some employes who do not have telephones or answering machines. The employer will want to know if the employe can take the assignment because a large percentage of job offers by temporary help agencies are for work that starts today or tomorrow. If the employe cannot take the work the employer must offer the work to someone else.

For these reasons, I would find that the employe quit not within any exception which would allow for the immediate payment of benefits when he did not call the employer after his assignment ended.

Pamela I. Anderson, Commissioner

 


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