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

GERON D BLUNT, Employee

SHORE PERSONNEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604776MW


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 was employed by the employer, a staffing company, and assigned to work as a general laborer at a client of the employer. The employee's last day of work for the employer's client was March 31, 2003. The client dismissed the employee from this assignment the following day, April 1, 2003 (week 14).

Department records show that the employee initiated a claim for unemployment insurance benefits in week 16, the calendar week ending April 19, 2003. The employee did not appear at the scheduled hearing on the issue of his eligibility for unemployment insurance benefits and thus no evidence was adduced in his behalf.

A document the employer received from its client regarding the employee was admitted into evidence as Exhibit 1. This document indicates that the client considered the employee to have a problem with alcohol and therefore the client required him to furnish proof of his participation in a substance abuse program but he failed to do so therefore the client dismissed him.

It is normally the case with staffing companies that its employees are to contact the staffing company after a work assignment has ended. The employer's human resources director testified that the employee never contacted the employer for further work after his assignment ended with the employer's client. Furthermore, the employer's human resources director testified that the employer never sent the employee a notice that he was no longer employed by the employer.

Since the employer never took any action to terminate the employment relationship with the employee, the employee must be considered to have terminated the employment relationship with the employer. The employee did not appear at the hearing. It has not been established that the employee's quitting was for any reason that would permit the immediate payment of benefits based on the employee's quitting.

The commission therefore finds that in week 14 of 2003 the employee terminated his employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a), and that such termination was not for any reason that would permit the immediate payment of benefits.

The commission further finds that the employee was paid benefits in the amount of $1454.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment did not occur due to "departmental error" as defined in Wis. Stat. § 108.02(10e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee 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. The employee is required to repay the sum of $1454.00 to the Unemployment Reserve Fund.

Dated and mailed December 12, 2003
bluntge . urr : 125 : 1 VL 1025

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner




MEMORANDUM OPINION

The ALJ concluded that the employee did not quit but was discharged by the employer. Further the ALJ concluded that the employer did not meet its burden of proof to introduce competent and persuasive evidence that the employee's actions that led to his discharge by the client constituted misconduct connected with his employment. However, the employment relationship in question is that involving the employee and the employer, not the employee and the employer's client. It is the employer staffing company that is the named employer in this case. As stated in the commission's findings of fact, the employer's human resources director testified that the employee never contacted the employer for further work after his assignment ended with the employer's client. Furthermore, the employer's human resources director testified that the employer never sent the employee a notice that he was no longer employed by the employer. Since the employer never took any action to terminate the employment relationship with the employee, the employee must be considered to have terminated the employment relationship with the employer.

The commission's reversal of the administrative law judge's decision in this matter was not based on an assessment of witness credibility but because it concludes that the facts called for a different legal conclusion.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 


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uploaded 2003/12/16