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


DEBRA J HOYT, Employe

WISCONSIN BELL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95602614MW


On December 21, 1994, the Department of Industry, Labor and Human Relations issued an initial determination which held that the employe was discharged, but not for misconduct connected with her employment. The employer timely requested a hearing on the adverse determination and, after procedural matters not now at issue, hearing was held on May 3, 1995 in Milwaukee, Wisconsin. On May 11, 1995, an administrative law judge for the department issued an appeal tribunal decision holding that the employe quit her employment, but not for a reason constituting an exception to the general quit disqualification of sec. 108.04 (7)(a), Stats. The employe timely petitioned 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 evidence in this case, the commission issues the following : 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe began working for the employer, a telecommunications company, in January of 1979. Her last day of work was November 11, 1994 (week 46). The dispositive issue is whether the separation which occurred at that time was a quit by the employe or a discharge by the employer. The commission concludes it was the latter, and so reverses the appeal tribunal decision.

The employer, in an effort to downsize its workforce, offered an early retirement package to certain of its workers, including the employe. The offer to the employe was called the Supplemental Income Protection Program. Pursuant to this program, employes accepting the early retirement option would receive a higher retirement benefit in exchange for the agreement to retire early. Employes also would receive an additional supplemental income, based upon years of service.

On May 13, 1994, the employe accepted in writing the employer's early retirement offer, and gave a preferred last day of work of July 15, 1995 (week 28). The written document also stated that the final decision (as to the employe's last day of work) would be based upon the employer's needs. The employe's last day of work was November 11, 1994 (week 46), the day the employer selected to be her last day of work.

The circumstances of this separation fall under the "accelerated quit" principle. Essentially, if an employe gives a future date as a date of quit, and the employer requires the employe to separate from the employment at an earlier date (and the earlier separation itself is not for a disqualifying reason), then the employe is eligible for benefits from the date of separation to the date the employe originally gave as the anticipated quit date. This principle has precedence in commission decisions : 

If an employe gives the employer notice of his intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employe to continue working up until the time that notice would have been effective, the employe will be eligible for benefits until the time that the resignation would have become effective unless there was some intervening misconduct on his part.

Boehm v. Downtown TV, No. 88-402052WU (LIRC, 6-29-89). This principle is also enunciated in the Department of Industry, Labor and Human Relations' Unemployment Compensation Manual : 

When an employe gives notice of an intent to quit on a specific future date, an employer may terminate the individual at a date more convenient to the employer. The quit disqualification does not apply to the period between the last day of work and the date set by the employe. The quit issue does not arise until the effective date set by the employe.

Vol. 3, part VII, Ch. 1, pp. 84-85.

The circumstances of this case fall precisely within the accelerated quit principle. The employe gave an intended date of quit of July 15, 1995. The employer accelerated the separation to November 11, 1994. The employer has not alleged that it chose the November 11, 1994 date to separate the employe because of any misconduct on the employe's part. The commission therefore finds that, in week 46 of 1994, the employer discharged the employe but not for misconduct connected with her employment. Based upon that separation, the employe therefore is eligible for benefits through July 15, 1995, if she is otherwise qualified. The commission also finds that, in week 28 of 1995, the employe terminated her employment with the employer, within the meaning of sec. 108.04 (7)(a), Stats., but not for a reason constituting an exception to the (7)(a) quit disqualification. Finally, there is no overpayment as a result of this decision.

DECISION

The appeal tribunal decision is reversed in part and affirmed in part. Accordingly, the employe is eligible for benefits in weeks 47 of 1994 through 28 of 1995, if she is otherwise qualified. The employe is ineligible for benefits beginning in week 29 of 1995, and until four weeks have elapsed since the end of the week of quitting (week 28), and the employe 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.

Dated and mailed :  February 16, 1996
hoytde.urr : 105 : 6 MC 627 VL 1007.20

Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ Richard T. Kreul, Commissioner

NOTE :  The commission did not confer with the administrative law judge, before determining to reverse the appeal tribunal decision in this matter. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and the administrative law judge had indicated that credibility was a factor in his or her decision-making. In this case, the administrative law judge indicated that credibility was not a factor in this decision-making. The commission agrees; its reversal of the appeal tribunal decision is based upon application of undisputed facts to the principles enunciated above.

cc :  AMERITECH

PATTI VALLONE
AMERITECH

DIRECTOR GREGORY A FRIGO
DIRECTOR BUREAU OF LEGAL AFFAIRS


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