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

VICTOR ROSE, Employee

STARK CANDY CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606366MW


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 as a packaging assistant for the employer, a confectionery business, for nine months. His last day of work was April 9, 2003.

The employee was taken into custody on a probation hold on April 9, 2003. The employee asked his parole officer to contact the employer and notify it of his situation. The employee's parole officer indicated that she would do so. The parole officer subsequently forgot to telephone the employer on the employee's behalf. The employee contacted the employer upon his release on April 14, 2003 (week 26), at which time his supervisor advised him that he was no longer employed. The employee was subsequently found not guilty of the allegations that led to his confinement in April of 2003.

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 was involuntarily held in confinement and could not appear for work as scheduled. The evidence did not establish that the employee engaged in culpable behavior that led to his inability to appear for work as scheduled. The employee took reasonable steps to maintain contact with the employer by asking his parole officer to notify the employer that he was going to be absent. None of the employee's actions as set forth above demonstrated his intent to terminate his employment. Rather, the employer made the decision to discharge the employee based on his absence without notice. The employer made a reasonable business decision to discharge the employee. However, the evidence did not demonstrate that the employee engaged in intentional and wilful conduct in disregard of the employer's interests.

The commission therefore finds that in week 15 of 2003, the employee did not voluntarily terminate his employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 16 of 2003, the employer discharged the employee but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2003, if he is otherwise qualified.

Dated and mailed December 23, 2003
rosevic . urr : 132 : 1 : MC 605.091

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who presided at the hearing. The commission has not reversed the ALJ's decision based on a differing impression of witness credibility but because it concludes that there is no evidence to support a finding that the employee by his conduct intended to terminate his employment.


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


uploaded 2003/12/29