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

DANIEL R TOELLER, Employee

KALTENBRUN BROTHERS ROOFING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02404146AP


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 two months as a roofer's helper for the employer, a roofing business. His last day of work was on or about April l4, 2001 (week 14).

The employee was absent from work on April 4. He called the employer on April 5 to inform the employer that he would not be working that day because his knee hurt. The employee spoke to the employer's president. The president told the employee that maybe the employee was not cut out to be a roofer and that may be he should look for another line of work. The employee never returned to work.

The first issue to be decided is whether the employee quit his employment or was discharged.

The employer asserted that the employee quit his employment. The employer argued that the employee did not return to work after April 5 or contact the employer. The commission agrees. The employee's testimony regarding what he was told by the employer's president was undisputed. The employee testified that called the president to ask for time off to rest his knee, and that he was not one for going to the doctor. The employee stated that the president told him that "maybe" the employee was not cut out to be a roofer and "maybe" he should look for another line of work. The employee testified that he "assumed" he was discharged. He further indicated he "considered" himself fired and sought medical treatment for his injury. The president did not tell the employee he was discharged. The president's statement is at best ambiguous as to that issue. This is underscored by the fact that the employee himself testified that he "assumed" he had been discharged. It is the employee's responsibility to clarify his employment situation. Here, the employee simply assumed he had been discharged and stopped reporting to work. As such, the employee quit.

The next issue that must be resolved is whether the employee's quitting was for any reason that would allow immediate benefit payment. In this case, the comment made by the employer's president was unflattering, but did not amount to good cause attributable to the employer. Further, the employee did not establish that his quitting was necessary because of his injury, or that assuming he was medically unable to work he exhausted reasonable alternatives prior to quitting.

The commission therefore finds that, in week 14 of 2001, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2001, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed August 15, 2003
toellda . urr : 145 : 1  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner




MEMORANDUM OPINION

The commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor but rather, because it reached a different legal conclusion when applying the law to the facts found by the ALJ. Consequently, the commission did not discuss witness credibility with the ALJ who held the hearing.

cc: Attorney Anthony J. Resimius


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/08/25