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

CRISTIAN TORRES, Employee

LOUS AUTO BODY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600976MW


On January 26, 2002, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on March 25, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On April 1, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision and, by October 9, 2002 order, the commission remanded the matter for additional hearing. That hearing was held on January 29, 2003 in Milwaukee, Wisconsin; the matter now is again before the commission and ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately 2 years as a detailer for the employer, an auto body shop. The employer purported to discharge the employee on January 7, 2002 (week 2), for two previous instances of having sworn at his supervisor and then refusing to apologize therefor. The issue is the proper characterization of the separation from employment. The commission concludes that it was a voluntary quit by the employee within the meaning of Wis. Stat. § 108.04(7)(a), not for a reason constituting an exception to the general benefit disqualification of that statute. The commission therefore reverses the appeal tribunal decision.

In November of 2001, the employee refused an assignment and, in so doing, swore at his supervisor. For this conduct, the employer imposed a three-day suspension of the employee. After one day of the suspension, the employee returned to the work site and told the employer that he needed to work, that he had no income otherwise. The employer's general manager told the employee he could return to work if he first apologized to the supervisor, and the employee did so.

The incident precipitating the separation from employment occurred on December 27, 2001. The employee refused another assignment, and so was told to go home by his supervisor (who then punched out the employee's timecard). The employee then swore at the supervisor and left the building. In subsequent conversations with the employee, the employer's general manager told him that he would have to apologize to the supervisor before he could return to work and that, if he did not do so, he would be discharged. The employee refused to apologize to his supervisor, and continued in his refusal for the next two weeks, at which point the employer purported to discharge him from the employment.

For purposes of the unemployment insurance law, a voluntary quit under Wis. Stat. § 108.04(7)(a) includes conduct inconsistent with the continuation of an employment relationship. The commission believes the employee engaged in just such conduct, in his continuing refusal to apologize to his supervisor for the second instance of what essentially was insubordination by the employee. The employer made it clear to the employee that he would be able to keep his employment if he apologized to the supervisor. It thus was within the employee's power, by making the apology, to maintain his employment with the employer. The employee therefore bears responsibility for the loss of employment. The employer's insistence, finally, that the employee apologize to his supervisor was reasonable.

The commission therefore finds that, in week 2 of 2002, the employee voluntarily terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), and that the termination was not for a reason constituting an exception to the general disqualification of that statute. The commission also finds that the employee received unemployment insurance benefits for weeks 4 through 39 of 2002, totaling $6,349.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 2002, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee must repay $6,349.00 to the Unemployment Reserve Fund.

Dated and mailed March 14, 2003
torrecr . urr : 105 : 1 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, it was based upon evidence not before the administrative law judge when he issued his decision.


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