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

WAYNE R WHEELOCK, Employee

SORENSON LUMBER CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03400691AP


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 seven and one-half months, most recently as a debarker for the employer, a lumber company. His last day of work was on December 20, 2002 (week 51). At that time the employer informed the employee that it would probably be just a couple of weeks and then he would be back to work. The employer had run out of logs.

On January 6, 2003 (week 2), the employer's owner telephoned the Huber facility to inform the employee that he could return to work on January 7, 2003 (week 2). However, personnel at the facility informed the employer that the employee had never returned to the Huber facility after December 20.

The initial issue is whether the employee was indefinitely laid off on December 20, 2002. In Hemstock Concrete Products, Inc. v. LIRC, 127 Wis.2d 437 (Ct. App. 1985), the court dealt with the issue of whether a layoff without a definite date of recall severs the employment relationship. The court stated:

A specific recall date is not necessary to reestablish an employment relationship if that relationship was never severed in the first instance. There is a presumption that a layoff severs the employment relationship, but both the commission and the court have recognized that the presumption may be rebutted by "evidence that at the time of layoff there existed an assurance, expressed or clearly implied by circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future." Hermann v. Miller Brewing Company, Hearing No. 18852, Decision No. 54-A-38 (Industrial Commission of Wisconsin, Dec. 18, 1953), quoted with approval in A.O. Smith, 88 Wis.2d at 267, 276 N.W.2d at 282.

The distinction between indefinite and temporary layoffs was recognized in A.O. Smith. There, the court commented on the facts of a Michigan case - where the employees understood that they would be recalled as soon as materials necessary for the resumption of production became available - stating that under such circumstances, "under Wisconsin law it would be clear that the . . . workers were not in an indefinite-layoff status." Id. at 269, 276 N.W.2d at 283.

The employee was given assurance that in the not too distant future work would resume. As in the Michigan case referred to above, the layoff was due to the lack of materials. The commission concludes that the employee was on a definite lay off. The employment relationship was ongoing when the employer attempted to contact the employee on January 6, 2003. Accordingly, the conditions of the employment are not subject to examination to determine whether they meet the protection of labor standards provision.

The employer was unable to contact the employee to notify him that work was available. The employee failed to contact the employer after his last day of work. The employee's conduct in failing to contact the employer or return to work for the employer was inconsistent with an intent to maintain the employment relationship and constituted a quitting. The employee did not appear at the hearing and no evidence was presented on his behalf to establish that he quit his employment for any reason permitting immediate benefit payment.

The commission therefore finds that in week 2 of 2003, the employee did not fail to return to work with a former employer that had recalled the employee within 52 weeks after the employee last worked for the employer, within the meaning of Wis. Stat. § 108.04(8)(c).

The commission further finds that in week 2 of 2003, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $2,427.00 for weeks 2 through 4, and 30 through 46 of 2003, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 2003, 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 equal to at least four times the weekly benefit rate that would have been paid had the quitting not occurred. He is required to repay the sum of $2,427.00 to the Unemployment Reserve Fund.

Dated and mailed December 9, 2003
wheelwa . urr : 132 : 1 : VL 1007.01  SW 844

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission's reversal is not based on the credibility of the employer's witness.


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