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

VIKI E WELLS VALENTINE, Employee

CURRIE PARK SERVICE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01611074MW


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 employee is ineligible for benefits beginning in week 44 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed January 30, 2003
valenvi . usd : 105 : 3  MC 626  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion that the separation was a quit of employment not for a reason constituting an exception to the general benefit disqualification of Wis. Stat. § 108.04(7)(a). Several circumstances relate to the separation from employment. Briefly, the employee was injured in an automobile accident and, upon her return to work, had medical restrictions which prevented her from being able to perform the duties of the full-time job the employer had for her. This case is unusual in that the employee's duties changed during the time period the employee was off work recovering from the automobile accident. This change apparently was due to an audit by a corporation which oversees the employer and which found that the employer's station standards were lacking.

In any event, the employee could not do the work the employer wanted, given her restrictions. The employee testified that the employer said that she could not do what he wanted her to do, that she should come back in eight weeks at which time he might or might not have something for her. The employee testified that, at this point, she turned around and walked out. The record also indicates, though, that at this point both the employee and employer expected the employee would return to work in eight weeks. For this reason, the commission does not believe the separation from employment can be deemed to have occurred here.

A few days later, the employee went to pick up her paycheck, and was told that she could not have the check until she saw the owner. The co-worker with whom the employee spoke, said something about the employee returning her keys. The following Monday the employee did go back to the workplace with her shirt and her keys. She testified that the owner said good morning, she asked him for her check, he retrieved the check and handed it to her, she asked where he wanted "these," he said to put it on the chair, and the employee did and then turned around and walked out the door.

The employee's argument is that an employer who asks an employee for his or her keys is discharging the employee and, indeed, that often is the case. In unusual circumstances, however, and this is one, such a request does not constitute a discharge. In the present case, the owner only wanted the keys back because he expected it would be approximately eight weeks before the employee would be able to return to work. Thus, the usual inference from the request for the keys does not apply in this case. This leaves the principle that it is the employee who is obligated to definitely ascertain his or her employment status. The administrative law judge found that she had not, and that such failure was a voluntary quit under Wis. Stat. § 108.04(7)(a), and the commission agrees.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

 


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