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. 02608748MW


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 24 of 2002, the week ending June 15, he was unemployed while convalescing from an injury or illness. He was carried on the employer's rolls as "absent without pay" for the week because he had exhausted all vacation, sick, and personal holiday entitlements.

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. At the same time, however, the employee's absence due to medical inability to work raises the issue of the employee's general availability for and ability to work in the week in question. The commission therefore also remands the matter to the department for investigation of that issue.

Wisconsin Stat. § 108.04(1)(b)2 renders an employee ineligible for benefits while the employee is on a voluntary leave of absence granted for a definite period. A leave for medical purposes is not a voluntary leave, however, but rather a suspension under Wis. Stat. § 108.04(1)(b)1. See Mayo v. County of Vilas, UI Dec. Hearing No. 98200082RH (LIRC 5-15-98). In the present case, the employee's leave was not voluntary; it was necessary due to an injury or illness which prevented the employee from being able to perform his work for the employer. This kind of leave is only voluntary in the sense in which the leave was voluntary in Department of Health and Social Services v. LIRC, Case No. 82-CV- 6826 (Dane Cty. Cir. Ct. 11-11-83). In that case, the employer required a layoff of several employees, but gave the employees the opportunity to request particular dates (before the employer would simply assign them). The court reasoned that "it would be a rather tortured reading of the word 'voluntary' to characterize [the employee's] request for a leave of absence a voluntary one. If a condemned man was given the choice of facing the firing squad at either sunrise or sunset, one could not say that his death was therefore voluntary."

The commission therefore finds that, in week 24, the employee was not a voluntary leave of absence granted for a definite period, within the meaning of Wis. Stat. § 108.04(1)(b)2. The commission finds that, in week 24 of 2002, the employee suspended his employment because he was unable to do suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The appeal tribunal decision is reversed. This matter is remanded to a department deputy for investigation of the employee's availability for and ability to work in week 24 of 2002, within the meaning of Wis. Stat. § § 108.04(1)(b)1 and 108.04(2)(a).

Dated and mailed May 21, 2003
francto . urr : 105 : 1  AA 126.3

/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 is as a matter of law and is not based upon a differing credibility assessment from that made by the administrative law judge.

cc: 
Bob McKnight
District Council 48 AFSCME Local 882

 


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