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

DEBORAH L MINDHAM, Employee

ESA SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403197AP


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 one month as a part-time guest services representative (desk clerk) for the employer, a hotel (Extended Stay America).

The issue here is whether the employee's separation was a quit or discharge, and whether it occurred under circumstances which would support the payment of benefits.

Sarah Drecktrah, the employer's assistant general manager, posted the schedule for July 6-19, 2002, on June 29, 2002. On Sunday, July 7, 2002, when the employee appeared to work her shift, she explained to Drecktrah that, due to the training schedule for her new part-time job, she would be unable to work her next scheduled shift on July 11, 2002, as well as two subsequent shifts. Drecktrah told the employee that it was her responsibility to find somebody to cover those shifts for her and gave her the names of two other part-time employees she could contact. The employee subsequently advised Drecktrah that neither of these other employees could work her shift on July 11. Drecktrah told her she would look into it and see who else was available. The employee, based on this, assumed that Drecktrah would find someone to work her July 11 shift for her and did not report to work on July 11. The evening of July 11, the employee's friend Pam, who is Drecktrah's sister-in-law, called and told the employee that Drecktrah had called Pam and asked where the employee was since she had not shown up to work her shift that day. The employee called the employer on July 12 and talked to a female who answered the phone, who she could not identify but who she knew was neither Drecktrah nor the general manager, who told the employee that her name had been taken off the schedule. The employee did not report for her scheduled shifts on July 13 or 14 because she had concluded from this July 12 conversation that her employment had ended.

The commission concludes that the separation at issue here was a quit, not a discharge. The employee, relying solely on a representation over the phone from some unnamed, presumably non-management, female who had answered the phone at the hotel, that the employee had been taken off the schedule, concluded that she'd been discharged and didn't show up to work her next scheduled shifts (July 13 and 14). Ordinarily, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002) Furthermore, the courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that she is fired. An employee owes a duty to definitely ascertain what her employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cit. Ct., Feb. 21, 1977); Arnold v. RD Roman, Inc., UI Hearing No. 980000732MD (LIRC Nov. 19, 1998); Wilson, supra. Any doubt the employee may have had concerning her employment status could easily have been resolved with a phone call to her immediate supervisor or to Drecktrah or to the general manager or to any other member of management, or by showing up ready to work on her next scheduled work day, and it was her duty to do so. See, Wilson, supra.; Arnold, supra. Instead, the employee, knowing that Drecktrah had tried to reach her on July 11 because she was questioning why the employee didn't report for her shift that day or find a replacement, didn't report for her shifts on July 13 or July 14 and did not speak to a member of management until some time in the middle of the following week, i.e., on or around July 17. This is conduct inconsistent with the continuation of the employment relationship which supports a conclusion that the employee quit. There is no exception to the quit disqualification which would support the payment of benefits here.

The commission therefore finds that, in week 29 of 2002, the employee quit her employment with the employer, but not with good cause attributable to the employer or for any other reason constituting an exception to the quit disqualification in Wis. Stat. § 108.04(7)(a).

The commission further finds that there was no overpayment of benefits to the employee since she had requalified for benefits as of the first week claimed (week 35 of 2002).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2002 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed May 16, 2003
mindhde . urr : 115 : 9  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that she found the testimony of the employee more credible than that of the employer and the commission agrees. As a result, the factual findings here credit the testimony of the employee. The commission's decision to reverse the appeal tribunal decision is not based on a difference of opinion regarding witness credibility but instead on a difference of opinion regarding the application of the law to the facts.


cc: 
Retail Specialists
Extended Stay America


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