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

ERICA L STANFIELD, Employee

DORAL DENTAL USA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03603717MW


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 dental plan administrator, for twenty months, most recently as a call center representative. Her last day of work was January 24, 2003 (week 4).

The employee received a corrective action plan on December 31, 2002. That document restricted her to one fifteen-minute break in the morning and afternoon. Because the employer noted that the employee continued to split her breaks after December 31, 2002, a second corrective action document was prepared on January 24, 2003, which specified that she was not to split breaks that she took. The employee indicated that she did not agree with the document because a medical condition required her to use the bathroom on occasions other than break times. She was advised in the meeting that notice to her supervisor on such occasions would be sufficient to protect her from disciplinary action for violating the break provisions. However, the employee had been given the same assurance prior to January 24, yet was again being issued a corrective action document.

The employee left the meeting prior to its conclusion, indicating that she would refuse to adhere to the provisions. She then had a discussion with a representative of the human resources office, who advised her that she would be considered to have quit if she did not agree to the terms of the corrective action program. She left the building stating that the employer had discharged her.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee knew that she could continue the employment relationship by signing the corrective action document. The employee was likewise aware that her failure to sign the document would end her employment. The employee had the last chance to act to preserve the employment relationship. The commission finds that by failing to sign the corrective action document the employee evinced her intent to terminate her employment with the employer. However, the employee further established that she had valid reasons for objecting to the document. The employee had a medical need to use the bathroom. The employee had been advised that doing so with notification to her supervisor would not be held against her, but the employer then drafted the January 24 document when the employee split her breaks to go to the bathroom.

The commission therefore finds that in week 4 of 2003, the employee voluntarily terminated her employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2003, if she is otherwise qualified.

Dated and mailed November 26, 2003
stanfer . urr : 132 : 1 : VL 1007.01   VL 1014  VL 1005.01 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that it was his impression that the employee felt overwhelmed at the January 24 meeting, and genuinely believed that she was being subjected to unfair treatment. The ALJ further indicated that the employee believed that going to the bathroom would be held against her.

The employer's conduct in issuing the January 24 corrective action document was contrary to its prior verbal assurances. Given this fact, and the employee's emotional state as a result of the action being taken against her, the commission disagrees with the ALJ that the employee did not have good cause attributable to the employer for quitting because she failed to explore other options that may have been available to her.


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uploaded 2003/12/03