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

DEIDRE M THOMAS, Employee

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609761MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 40 of 2002, if otherwise qualified. This decision does not result in an overpayment.

Dated and mailed June 26, 2003
thomade . usd : 115 : 1    SW 840  SW 845.01  SW 845.03 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked for the employer, a temporary placement agency, for approximately four years. Her last day of work was July 25, 2002, when she was discharged for insubordination.

The issue is whether the employee failed, without good cause, to accept an offer of suitable work from the employer on September 24, 2002.

Wisconsin Statutes § 108.04(8) provides that, if an employee fails, without good cause, to accept suitable work when offered or to return to work with a former employer when recalled within 52 weeks, the employee is ineligible for benefits until she requalifies.

It is the employer's burden to show that it presented the employee with a bona fide offer of work. In order for an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. K & H Construction, Inc., v. Ind. Comm. & Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968). A bona fide offer is one which is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Ser Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999)(an offer which did not include the location of the job but which required the employee to contact the employer to learn it not a bona fide offer because not complete); Jordan v. Personnel Alternatives Inc., UI Hearing No. 93610008MW (LIRC Sept. 2, 1994)(offer which stated the duties of the position, the wage rate, the starting date, and the hours of work is a complete and bona fide offer). Here, the administrative law judge (ALJ) apparently found the employee's testimony that the employer did not tell her the location of the staff assignment employee position it was offering more credible than the employer's testimony that she told the employee the position would be located at the employer's downtown branch. The commission finds no persuasive reason in the record to overturn this credibility determination. Moreover, although the employer now asserts in its petition for commission review that the hours of work for a staff assignment employee position are flexible and the employee would have been aware of this due to her previous employment in such a position, the record does not reflect this fact or even mention the hours of work for the offered position. Since it is the employer's burden to show that the subject offer was complete, and since the record does not show that the hours of work for the offered position were discussed with the employee or should have been evident to the employee, it would have to be concluded that the offer was incomplete in this regard as well. The commission concludes that, because the employer did not tell the employee where she would be working or what time she should report, it did not make a bona fide offer of work to the employee.

If the employer had sustained its burden to show that it made a bona fide offer, the next question under the circumstances presented here would be to determine whether the employee "blocked" the offer by failing to get back in touch with the employer after the offer was made to her on September 24. An employee blocks an offer through actions or words which dissuade or prevent an employer from making the offer. Norwood v. ADIA Personnel Services, UI Hearing No. 94606502KN (LIRC, Mar. 22, 1995); Jordan, supra. Since the ALJ found credible the employee's testimony that she left a message for the employer on September 24 but the employer failed to return her call, the employee's failure to reach the employer to further discuss the offer or to continue trying to reach the employer would not be considered an effort by the employee to block the employer's offer. See, e.g., Jordan, supra, (employee's failure to attempt to contact the employer after receiving but not responding to a bona fide offer, and indication, when the employer then contacted her, that she could not work on Tuesday the following week, that she was concerned about the workload of the offered position, that she had received a work search waiver from the UI office, that her former employer might call her back to work, and that she desired only 1-4 day assignments, clearly imparted to the employer that the employee did not want the job and essentially "blocked" the employer's offer of the job)

Finally, if the employer had sustained its burden to show that it made a bona fide offer, the remaining question would be whether the employee refused the offer and, if she did, whether she had good cause to do so. The ALJ implies in her decision that the employee did not accept or refuse the offer, but simply asked for more time to consider it. Under the circumstances under consideration here, this would not constitute an actual or constructive refusal. See, White v. Meyer Realty & Management, Inc., UI Hearing No. 98004381MD (LIRC May 20 1999) (the employee did not refuse the offer of work when he simply asked for a short amount of time in order to consider it, and telephoned the employer back a few minutes later but was unable to talk to the employer because he was no longer available). In addition, if it were concluded that the employee had refused the employer's offer, she may have had good cause for doing so due to her relatively recent discharge by the employer. See, Patterson v. Regency Janitorial Service, Inc., UI Hearing No. 01607619MW (LIRC Jan. 17, 2002)(the fact that the employee had been fired by the same employer three weeks prior to the offer provided her good cause for refusing it)

The commission concludes that in week 40 of 2002, the employee did not fail, without good cause, to accept an offer of suitable work from the employer within the meaning of Wis. Stat. § 108.04(8)(a).



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