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

ANDRE D THOMPSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604528MW


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 approximately four months, most recently as a tool tester, for the employer, a staffing service. His last day of work was March 28, 2003, and the employment relationship ended on April 1, 2003 (week 14).

On March 28, 2003, the employee completed a work assignment for the employer. He was informed that the employer would find him other work. On March 31, of 2003, the employee contacted the employer and was informed that he could begin work April 1, 2003, assembling display items. The employee reported to the employer's offices to obtain the information concerning the job. Later that afternoon he telephoned the employer to inform it that he would accept the job. On April 1, 2003, the employee telephoned the employer to inform it that he would not accept the job due to its location. The employee discovered that he would have to take three buses, paying for two different transit systems, in order to reach the job location. On April 2, 2003, the employee contacted the employer seeking work. The employer informed the employee that none was available. Thereafter the employee continued to contact the employer for work.

The issue to be decided is the employee's eligibility for benefits beginning in week 14 of 2003.

Not every refusal of a work assignment constitutes a voluntary termination on the part of the employee, this is so despite the employer's policy to the contrary. The employee did not intend to sever his employment with the employer but merely declined one assignment because of its location. The nature of the relationship between a temporary help agency and an employee contemplates that assignments will be offered at a variety of locations. The employee's failure to accept one specific assignment at one particular location does not in and of itself reflect an intent on the part of the employee to voluntarily terminate his employment. Likewise, the fact that the employer could not immediately offer the employee another assignment, after the employee refused the first offer of ongoing work, did not translate into a discharge. Rather the commission concludes that the correct issue is whether the employee failed to perform available work under Wis. Stat. § 108.04(1)(a). The commission remands that issue because the record does not clearly reflect how much the employee would make in the assignment, the number of hours available in the assignment, or how long the assignment was to last.

The commission therefore finds that in week 14 of 2003, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 14 of 2003, the employer did not discharge the employee 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 if he is otherwise qualified. This matter is remanded to the department for a determination on whether the employee had due notice of work available under Wis. Stat. § 108.04(1)(a).

Dated and mailed January 30, 2004
thompan . urr : 132 : 1 : VL 1025

/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 his impressions of witness credibility and demeanor. The commission concludes that the record does not support a finding that the employee intended to terminate his employment.


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uploaded 2004/02/02