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

FRANCIS C TOPEL JR, Employee

COUNTY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608752MW


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 has worked for the employer, a county government, since 1982. His last day of work prior to initiating a benefit claim was May 10, 2002.

The employee initiated a claim for unemployment insurance in week 20 of 2002, the week ending May 18, while serving a week of disciplinary suspension. In week 27 of 2002, the week ending July 6, he was absent due to a week of vacation requested in April 2002. He was considered unemployed in such week because all vacation pay had previously been paid to him under an employer policy distributing such entitlements until exhausted when an individual was absent due to illness or injury. The issue to be decided is whether the employee was on a voluntary leave of absence granted for a definite period. The commission concludes that he was not, and so reverses the appeal tribunal decision.

An employee on a voluntary leave of absence for a definite period, under Wis. Stat. § 108.04(1)(b)2, is ineligible for unemployment insurance benefits during the time period of the voluntary leave. An employee who receives vacation pay for a given week, may be eligible for partial unemployment insurance benefits pursuant to Wis. Stat. § 108.05(4)(b), which lists the conditions under which vacation pay will be treated as wages for the purpose of calculating an employee's potential eligibility for partial unemployment insurance benefits. Given this statutory provision, "it is the case that the unemployment insurance law expressly contemplates that an individual on vacation may be eligible for unemployment insurance benefits, and this express contemplation is inconsistent with an interpretation of Wis. Stat. § 108.04(1)(b)2 that includes vacations within voluntary leaves of absence."  Etrl v. Tecumseh Products Co., UI Dec. Hearing No. 02402668SH (LIRC February 5, 2003). The commission therefore finds that, in week 27 of 2002, the employee was not on a voluntary leave of absence granted for a definite period, within the meaning of Wis. Stat. § 108.04(1)(b)2.

The question remains how to properly characterize the employee's absence from work in week 27. The employee's vacation essentially was a suspension by the employee due to his unavailability that week for suitable work otherwise available with the employer. The commission concludes that the statute most reasonably applicable to such absences from work is Wis. Stat. § 108.04(1)(b)1. The commission therefore finds that, in week 27 of 2002, the employee suspended his employment with the employer because he was unavailable for suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1. An additional element of this statutory provision is the employee's ability to work and availability for work. That remains an issue, necessitating remand to the department for further inquiry.

DECISION

The appeal tribunal decision is reversed. This matter is remanded to a department deputy for inquiry into the employee's ability to work and availability for work in week 27 of 2002, within the meaning of Wis. Stat. § § 108.04(1)(b)1 and 108.04(2)(a).

Dated and mailed May 21, 2003
topelfr . urr : 105 : 1  AA 126.1  UW 995 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ 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, as a matter of law a vacation is not a voluntary leave of absence for a definite period under Wis. Stat. § 108.04(1)(b)2.


cc: 
Bob McKnight
District Council 48 AFSCME Local 882


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