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

KELLEY J TOMASEK, Employee

KWIK TRIP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02202589EC


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 for the employer, a convenience store, for four and a half years as a "front end specialist." Her last day of work was November 2, 2002 (week 44).

On September 17, 2002, the employee tendered her resignation effective December 9, 2002 (week 50). The employee had timed her last day of work to coincide with the "year-end meeting" at which the employer gave employees their bonuses. Employees who were not employed as of that date were not eligible for the year-end bonus. The employee's resignation was for personal reasons, related to her work schedule.

The employee was scheduled to work on October 28 from 11:00 a.m. until 7:00 p.m. When the "store leader," Karen Berg, arrived at the store, she saw a doctor's note indicating that the employee was seen by a doctor for back pain on October 27 and could return to work the next day. The employee called at 8:00 a.m. and asked Ms. Berg whether she had received her doctor's note. Ms. Berg indicated that she had, but that the note did not excuse the employee from work that day. The employee stated that this was in error and that her doctor did not want her to work for a couple of days. The employee was told she needed to find a replacement for her shift and was given two names to call. At 8:30 a.m. the employee called back and stated that she could not get a hold of the people Ms. Berg had suggested. Ms. Berg directed the employee to call another worker, then to call back and let her know what was going on. The employee was unable to reach the other worker. She made repeated efforts to contact Ms. Berg, but the line was busy each time. Ms. Berg ultimately contacted the worker herself, and arrangements were made to cover the employee's shift. At approximately 10:30 a.m. the employee's sister provided the employer with a new doctor's note which indicated the employee would be able to return to work in two days.

When the employee reported for her next work shift, on November 2, 2002 (week 44), she was called into a meeting with Ms. Berg and another store leader. Ms. Berg contended that on October 28 the employee had attempted to call the other store leader, who was not at home, and had told that individual's mother that she very upset she had to find her own replacement and had referred to Ms. Berg by an obscenity. The employee denied having made the remark in question. The employee was told she was being suspended for insubordination. At the hearing the employer contended that the suspension was both because of the language the employer believed the employee had used, and because of her failure to secure a replacement or call the employer back on October 28.

On November 4, 2002 (week 45), Ms. Berg notified the employee she was discharged. The employee performed no work for the employer thereafter.

The issue to resolve is whether the employee quit or was discharged, and whether she is eligible for benefits based upon that separation.

The circumstances of this separation fall under the "accelerated quit" principle. If an employee gives the employer notice of her intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employee to continue working up until the time that notice would have been effective, the employee will be eligible for benefits until the time the resignation would have become effective unless there was some intervening misconduct on her part. Boehm v. Downtown TV (LIRC, June 29, 1989); Hoyt v. Wisconsin Bell, Inc. (LIRC, Feb. 16, 1996); Burns v. Schneider National Carriers, Inc. (LIRC, Dec. 27, 1999).

In this case, the employee indicated her last day of work would be in week 50, but the employer suspended her in week 44 and ended the employment relationship in week 45. It was understood as of Monday of week 45 that the employee could not return to work. Therefore, the employee's quit date was "accelerated" from week 50 to week 44 of 2002.

The final question to resolve is whether there was any intervening misconduct on the employee's part. In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employer contended that the employee referred to Ms. Berg by an obscenity. However, the employee denied having done so, and the employer presented no nonhearsay evidence in support of this allegation.

The employer also contended that the employee failed to find her own replacement on October 28 or to call Ms. Berg back, and that her failure in this regard was insubordinate. The commission disagrees. It is undisputed that the employee did make some efforts to find a replacement. While the employer contends that she did not attempt to contact a third individual at its direction, the employee testified otherwise and the commission sees no reason to discount this testimony. The employee also indicated that she attempted to call Ms. Berg, but was unable to get through. Again, the commission considers this explanation to be credible, and it believes that the employee did make reasonable efforts to locate a replacement. Moreover, even if the commission were to find that the employee did not attempt to contact the third worker or to get back to the employer, it would be disinclined to find that such failure amounted to misconduct. It is undisputed that the employee made some efforts to comply with the employer's directive, and the commission does not believe that a sick or injured worker's failure to fully devote herself to the project of finding a replacement worker is a fault so egregious as to rise to the level of misconduct, within the meaning of the statute.

The commission therefore finds that, in week 50 of 2002, the employee terminated her employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section.

The commission further finds that the employer, by its actions in failing to offer continued work until the effective date of the quitting, incurred liability for UI benefits in weeks 44 through 49 of 2002.

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employe is eligible for benefits in weeks 44 through 49 of 2002, if she is otherwise qualified. The employee is ineligible for benefits beginning in week 50 of 2002, and until four weeks have elapsed since the end of the week of quitting (week 50), and the employee 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. There is no overpayment as a result of this decision.

Dated and mailed July 22, 2003
tomaske . urr : 164 : 1    MC 627

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The appeal tribunal decided this case under a disciplinary suspension theory. However, the disciplinary suspension issue was not noticed for hearing, and neither party contended that the employee was subject to a disciplinary suspension. Rather, as indicated in the body of the decision, the separation in this case is better characterized as an accelerated quit, with the employer refusing to permit the employee to continue working until the effective date of her resignation. In deciding whether there was intervening misconduct, the commission conferred with the administrative law judge to obtain his impressions of witness credibility and demeanor. The administrative law judge indicated that he did not find the employee's testimony that she attempted to reach the third worker to be credible, given that the employer had no trouble reaching that individual, and did not credit her testimony that she attempted to reach the employer for an hour but the line was busy. The commission disagrees with this assessment of credibility. The commission does not find it implausible that the employee attempted without success to reach a co-worker, notwithstanding the fact that the employer was able to do so, nor does it see any reason to reject her testimony that she attempted to contact the employer but the line was busy for an extended period of time. Moreover, as indicated in the decision, even if the commission were to conclude that the employee did fail in her efforts to contact the co-worker or the employer, this would be insufficient to lead it conclude that she engaged in misconduct.

cc: Kwik Trip, Inc. (Chippewa Falls, Wisconsin)


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