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

CHERYL L MUNROE, Employee

GOODWILL INDUSTRIES OF NORTH CENTRAL WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403107AP


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 for the employer for about six years as an accounts/office clerk. Her last day of work was July 3, 2002 (week 27).

On July 3, 2002, the employer's finance director, Jacqueline Draws, called the employee into her office to discuss her use of vacation time. Ms. Draws asked the employee if she was intending to use up her vacation, and the employee stated she was. Ms. Draws then told the employee she had heard a rumor that the employee was planning on quitting, and asked if that were true. The employee responded in the affirmative. When asked what the problem was, the employee stated that she felt underappreciated and believed she was made a scapegoat by others who were not held accountable for their actions. Ms. Draws responded that the employee had been short with people at work and seemed stressed out, and the employee agreed this was the case. The employee was asked if there was anything that would make her change her mind, but indicated her mind was up. At this point Ms. Draws stated, "Instead of using your vacation, just hand in your resignation." Ms. Draws indicated she would pay the employee the vacation days she had coming, and asked how that sounded to her. The employee responded that was "okay," but that she was a little surprised.

The question to decide is whether the employee quit or was discharged, and whether she is eligible for benefits based upon that separation.

The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer contended that the employee quit, but the commission does not agree. The employer initiated the conversation regarding the separation from employment, and while in response to questioning from the employer the employee may have indicated that she was determined to quit, she did not state when her last day of work would be or give any indication that she intended to do so in the immediate future. The employee testified that she planned to secure other employment before providing her notice, and there is no reason to believe that she would have quit on July 3 had the employer not pressured her into doing so. Overall, it appears that the employer learned of the employee's intention to quit at some future date, then manipulated the situation to procure the employee's immediate resignation. The mere fact that the employee may have assented when the employer asked her to quit then and there does not mean that the employee intended to sever the employment relationship, and the employee could reasonably have concluded under the circumstances that she no longer had the option of remaining employed.

Having concluded the employee was discharged, the remaining question to resolve is whether her discharge was for misconduct. The employee was discharged after the employer learned she intended to quit. No evidence of misconduct was presented.

The commission therefore finds that in week 27 of 2002, the employee was discharged and not for misconduct connected with her employment, 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 27 of 2002, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 31, 2003
munroch . urr : 164 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission consulted with the administrative law judge regarding her impressions of witness credibility and demeanor. The commission does not disagree with any credibility assessment made by the administrative law judge, but reverses as a matter of law.

cc: Goodwill Industries of North Central Wisconsin (Menasha, Wisconsin)


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