MELISSA J MAJCHRZAK, Employee

SEARS ROEBUCK & CO, Employer

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:

The employee worked approximately two-and-one-half years as a salesperson for the employer, which engages in retail sales. Her last day of work was April 14, 2002 (week 26).

The employee was on maternity leave after her last day of work. Around week 32 of 2002, the calendar week ending August 10, the employee visited her doctor, who released her to return to work. She did not return to work because she had no childcare for her newborn. When she failed to return as expected, the employer attempted without success to contact her. In late August of 2002 she went to the employer's place of business to show her co-workers the newborn. The employer asked her at that time when she would be returning to work. She advised the employer that could not return to work until she located childcare.

On September 30, 2002 (week 40), the employer removed the employee from its system. On October 4, 2002 (week 40), she went to the employer's place of business to show her co-workers her child. When she advised the employer that she could return to work around mid-October, the employer advised her that it had already terminated her in its system. A few weeks later, she filed for unemployment insurance benefits.

The issue to be decided is whether the employee was eligible for benefits based on her leave and separation from employment.

The employee was on an approved leave of absence. She alerted the employer that she was unable to return following the birth of her child, due to childcare difficulties. The employer did not respond to the employee's statement. The employer never indicated when it spoke to the employee in August that it considered the employment relationship had ended. Indeed it was the employer who inquired when the employee would be returning. When the employee indicated she had childcare problems the employer gave no indication that she would be considered to have quit her employment if she did not immediately return to work. The employer gave the employee no indication that an extension of the leave was unacceptable. The employee did not learn that the employer had unilaterally decided the employment relationship had ended on September 30, 2002, until October 4, 2002, when she again appeared at the employer's business. Given the employee's conduct in notifying the employer of the reason for the extended leave, and lack of response by the employer indicating her employment was in jeopardy, there is no basis for inferring or concluding that the employee intended to terminate her employment relationship with the employer. The employer decided to remove the employee from its system on September 30, 2002 (week 40), and therefore it was the employer's decision to terminate the employment relationship at that time.

The employee received no notice that her continuing leave was unacceptable to the employer, or that the employer considered the employee's conduct inconsistent with the desire to remain employed. The employee gave notice of the need and reason for her extended absence. The employee received no warning that her employment was in jeopardy. The record does not support a finding that the employee's discharge was for misconduct connected with her work.

The employee's continued unavailability for work due to childcare problems made the employee unavailable for work on the general labor market, and ineligible for benefits during such unavailability. She was unavailable for work until week 43 of 2002.

The commission therefore finds that in weeks 16 through 31 of 2002, the employee suspended her employment because she was unable to do suitable work otherwise available with the employer, and was not able to work on the general labor market within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that in weeks 32 through 39 of 2002, the employee suspended her employment because she was unavailable for suitable work otherwise available with the employer, and was unavailable for work on the general labor market within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that in week 40 of 2002, the employee was discharged by the employer and not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in weeks 40 through 42 of 2002, the employee was not available for work on the general labor market within the meaning of Wis. Stat. § 108.04(2).

The commission further finds that as of week 43 of 2002, the employee was able to work and available for work on the general labor market within the meaning of Wis. Stat. § 108.04(2).

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 16 through 42 of 2002. She is eligible for benefits as of week 43 of 2002, if she is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed August 13, 2003
majchme . urr : 132 : 9 : MC 626  AA 220

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not credit the employee's contention that she did not receive the letters from the insurance company. The ALJ indicated that he did not recall the employee's demeanor. The commission has reversed the ALJ's decision because neither party acted to end the employment relationship prior to week 40 of 2002. The insurance company letters merely stated when her disability leave would end, and did not indicate that her employment would terminate if she extended her leave time. Further, the employee was employed by the employer, not the insurance company, and the employer gave no indication when the employee appeared at the workplace in August that the employment relationship had ended. The employee advised the employer that she had childcare problems. There was no communication between the parties indicating that the employer considered that the employee quit her employment prior to that day, or that her continued absence due to childcare problems would lead to the end of the employment relationship.

cc: Sears Merchandise Group

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uploaded 2003/08/25