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

TIMOTHY L MITCHENER, Employee

HOLST EXCAVATING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200244EC


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, an excavating and trucking firm, for approximately seven months as a laborer. His last day of work was Wednesday, November 20, 2002 (week 47).

On Monday of the employee's last week of work the employee called in sick. On Tuesday he reported to work, but was told the employer had no work for him. On Wednesday, the employee reported for work and worked a half-day, at which point he was told the employer had no more work for him. The employee called the following day and was told the employer did not have any work at that time. He called again on Friday and was told the employer did not have anything for him to do. The employee made no further contact with the employer and performed no work for it thereafter. He testified that he was laid off by the employer due to a lack of work at about the same time in the previous year, and considered that he had again been laid off due to a lack of work.

The question to decide is whether the employee quit or was discharged, and whether he is eligible for benefits based upon that separation. The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

At the hearing the employer indicated that it had work for the employee through the month of December and considered he had quit. However, the employee was sent home early on his last day of work and, although he called in the next two days, was told the employer had no work for him. The employer did not instruct the employee to contact it in the following week and did not indicate that it expected to have work for him in the near future. The employee's failure to make further contact with the employer under these circumstances did not evince an intent to quit, and his assumption that he was laid off due to a lack of work was a reasonable one. The employee was under no obligation to make continued contact with the employer, and if the employer had work available for the employee, it should have notified him of this fact.

Under all the circumstances, the commission concludes that the employee did not quit, but was laid off by the employer due to a lack of work. The employee's discharge under these circumstances was not due to misconduct.

The commission therefore finds that in week 47 of 2002 the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2002, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 15, 2003
mitchti . urr : 164 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is not based on a differing assessment of witness credibility. Rather, the commission has arrived at a different result when applying the law to essentially the same set of facts as that found by the appeal tribunal.


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uploaded 2003/08/25