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

DONALD R KOPE JR, Employee

HILDEBRANDT TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03400407MN


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, in his second period of employment for the employer, a trucking company, worked three months as a truck driver. His last day of work was December 24, 2002 (week 52).

The issue is whether the employee's separation was a quit or discharge, and whether it occurred under circumstances which would permit the payment of benefits.

On December 24, 2002, the employee appeared for work at 5:00 a.m. The employer was sleeping and the employee didn't want to wake him to determine whether there was work for him that day. There was no product in the storage shed to be delivered, so, at 6:00 a.m., the employee asked the other driver to inform the employer that he had gone home for the day. There was no driving work that day and the other driver remained at the work site and did odd jobs. In the past, when there had been no product to deliver, the employee had been sent home.

The employee did not report for work after December 24.

The employer had no work for the employee and concedes the employee was on layoff status on December 26, 27, 30, and 31, 2002. The employer did not contact the employee to tell him when to report back to work, and the employee did not contact the employer to ask when he was to report back to work.

The employer's owner testified that the employee had been laid off for two days in one week and two days in another and, given the facts of record, this would have been December 26, 27, 30, and 31, 2002. The employer's owner testified that his wife called the employee on or around December 24, and told him there would be no work for him until January 2. However, this testimony was unsubstantiated hearsay, and did not successfully rebut the employee's testimony that the message he received from the owner's wife did not state that he was to report for work on January 2 or any other date, and he was not otherwise notified by the employer when to come back to work after the layoff.

A layoff where the employee is given a definite recall date or has a definite expectation of being recalled within the foreseeable future does not sever the employment relationship. Hemstock Concrete Products, Inc., v. LIRC, 127 Wis.2d 437 (Ct. App. 1985). In contrast, a layoff for an indefinite period of time is a discharge. See, Hanseder v. Lieds Nursery Co., Inc., UI Hearing No. 00400393AP (LIRC April 10, 2000). Since the employer concedes that it laid the employee off in December, it was the employer's responsibility, in order to avoid a conclusion of discharge, to have notified the employee that he was to report back to work on a specific date, and the record does not show that the employer did this. In the absence of such a showing, the separation was a discharge, and there has been no contention or showing that the employee engaged in any misconduct.

The commission concludes that, in week 52 of 2002, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 29, 2003
kopedon . urr : 115 : 1   VL 1007.01

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did consult with the administrative law judge before reversing his decision. The administrative law judge indicated that he based his conclusion that the employee had unreasonably assumed that he had been laid off on the fact that the record established that it was the customary practice for the employee to show up each day to determine whether the employer had work for him. However, the record shows that the employer's owner conceded that he had laid the employee off, and that the employer introduced only unsubstantiated hearsay evidence to sustain its burden to prove that it had given the employee a definite recall date.

cc: Myrl L. Sharpe


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