ΒRΙΑΝ Τ ΚΟΕΝΙΝGS, Employee

CΟΜΜΕRCΙΑL WΕΑΤΗΕR ΡRΟΟFΙΝG SERVICES INC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed March 5, 2004
kоеnіbr . usd : 125 : 1  MC 626  MC 627 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission agrees with the ALJ's determinations that the employee did not quit and that the employee was discharged but such discharge was not for misconduct.

First of all, there was no competent evidence presented by the employer regarding what transpired during the meetings between the president and the employee on May 28 and 30, the two most critical events in this matter. The employee presented the only competent evidence regarding those meetings. He testified that on May 28, after advising the president that this job was not for him, it was agreed that he would continue working until he found another job or the employer found a replacement, but that a date was never set for him to leave.

Where an employee indicates an intent to quit, but only when he finds another job and without any definite date set for him to quit, and the employer unilaterally determines the effective date for the separation, this constitutes a discharge, not a quit. Marino v. Fond Du Lac Association of Commerce (LIRC, 09/25/03); Volden v. Linen Center (LIRC, 05/28/03); Munroe v. Goodwill Industries of North Central Wisconsin (LIRC, 01/31/03),

With respect to what transpired at the May 30 meeting, the employee testified that he and the president disagreed over whether he was required to repay the $6,750 the employer had given him until he finally stated that he had nothing further to say on the matter. The employee testified the president asked for his keys for the building and the truck, and his cell phone and credit card. The employee testified that he did not give the president the keys before he asked for them. The employee testified that when the president asked for the keys and "stuff", and threatened to sue him, he assumed that he was terminated.

Where there is an ambiguity regarding whether a separation from employment was a quitting or a discharge, the commission looks for the party that initiated the ultimate separation. Kline v. Laub & Horton, Inc. (LIRC, 05/16/00). A demand that an employee turn in his keys is tantamount to telling the employee he is fired, and if the employer intended something different it should have made this clear. Livingston v. L & D Trading Post, Inc. (LIRC, 06/13/02); Eiler v. Shoney's Restaurant (LIRC, 10/26/01).

In its petition for review the employer's CEO argues that because the company president was not present at the hearing the ALJ would not accept its testimony, but the president did not appear because it was the employer's understanding that the "facts which were established when the employee met with the [UI investigator] were determined facts." The employer states that it would like a chance for the president to "give his facts on the case." For reasons stated below, the employer's argument fails, and therefore its request that the president be given a chance to present his testimony must be denied. Specifically, following the employee's appeal of the investigator's initial determination, a hearing notice was mailed to the parties. The hearing notice identified the issues to be covered as including "Whether the employee's separation from employment was a quitting, a discharge for misconduct, or a suspension or." Further, the notice of hearing instructed the parties to review the pamphlet, "Attending a UI Hearing", and to read the other side of the hearing notice for important information. On the other side of the hearing notice at the bottom of the page in bold print was the instruction that "This hearing is your only opportunity to present documents and testimony as evidence in this case." Further, under the section "PREPARATION FOR THE HEARING" in the "Attending a UI Hearing" pamphlet was a section on "Witnesses", which reads as follows: "In deciding who, if anyone, you should bring as a witness, keep in mind that the person should have actual, direct, personal knowledge of the facts relating to the appeal.the ALJ cannot make any findings based solely on hearsay testimony, that is, testimony not within the witness' own knowledge.."

The employer was provided sufficient notice that it was necessary that its president attend the scheduled hearing.

The employer further asserts that "The fact that Brіаn quit was never disputed by him at any point until he got to this hearing." (Bold emphasis in original.) The employer asks, "How is a person allowed to tell a UI Deputy one set of facts and completely change his story?" The employer asserts that it understands hearsay, but asks, "why would the facts given by (sic) the UI Deputy bear no weight?" First of all, the "set of facts" that the employee allegedly gave to the investigator (Exhibit 3) indicates that that these "facts" were based on a telephone conversation the investigator had with the employee, and therefore the employee would not have been present to review the "set of facts" as prepared by the investigator for their accuracy. Indeed, the employee pointed out at the hearing that he disagreed with a number of the "facts" as set forth by the investigator.

Second, the statement the employee gave to the deputy was considered by the ALJ at the hearing and the record evidence fails to show that the employee had "changed his story." The employer argues that the employee "quit" on May 28 and now per the ALJ, "the story is changed to say that he did not quit he just wanted to look for a new job and the employer would pay him until he found a new job (????)." The employer argues that this is contrary to what the employee told the president and the investigator. The employer's arguments fail. As for what the employee allegedly told the president, the employer presented only hearsay evidence about what the employee allegedly told the president. Further, even the investigator's statement of what the employee said shows the employee stating that on May 28 "I did not state that I was quitting."

The employer is correct in the sense that on May 28 the employee did indicate an "intent to quit." However, as noted by the case law cited above, where an employee indicates an intent to quit, but only when he finds another job and without any definite date set for him to quit, and the employer unilaterally determines the effective date for the separation, this constitutes a discharge, not a quit. The employee did not "change his story" at the hearing. What the employee stated at the hearing was that after he stated that the job was not for him and Mr. Hanna said that he shouldn't stay in a job he didn't like, that they agreed that he would stay on until he found another job because he expressed that he couldn't afford to quit the job. This is not inconsistent with the employee's statement to the investigator. In the statement prepared by the investigator (Exhibit 3) the employee is recorded as stating that "On 5/28 I met with [the president] and told him that the sales portion of the job was not for me. I did not state that I was quitting. However, he said that it (sic) would like the transition of my finding another job as quickly as possible." Read as a whole, the only reasonable interpretation that can be given to this statement is that when the employee met with the president on May 28, he did not say that he was quitting immediately but that he would continue on until he found another job and that the president wanted him to find another job during this transitional period as quickly as possible.

As further evidence of the employee's "changed story," the employer argues that per the ALJ, the president asked for the employee's keys and credit cards, but per the president and what the employee told the investigator, the employee "declared an end to the meeting and put down his keys and credit cards." Again, as for the president's version of what transpired, the president did not appear at the hearing to testify. Second, the statement the employee gave to the investigator did not constitute a changed story. The investigator recorded the employee as stating the following:

"On 5/30 I again met with [the president]. He insisted that I return a $6750 bonus that I received. That was my money and I refused. He then threatened to sue me for it. At that point I stated that the conversation was over. I gave him my keys and phone and left."

The employer reads the last two sentences of the statement prepared by the investigator as constituting one continuous action by the employee. This, however, only constitutes the employer's interpretation of that statement. The employee testified consistently at the hearing that the president asked for the keys and cell phone before he gave them to the president. The ALJ found the employee's testimony credible, and the commission finds no reason to question his assessment of the employee's credibility.

The employer further argues that "Much of the testimony, facts, and contradictions given in the hearing are not found in the judge's decision." However, except as noted above, the employer has not identified this "testimony, facts, and contradictions" or how any of this would require a different decision than that reached by the ALJ.

Finally, the employer's CEO argues that the ALJ did not allow her to "ask questions and point out inconsistencies in the employee's testimony." Further, she argues that "His manner was very intimidating and coercive at this point in the hearing. I think it is very important for an objective third party to listen to the tape." The tape of the hearing was reviewed. The hearing tape reveals that the ALJ did not refuse to allow the employer's CEO to ask questions and point out inconsistencies in the employee's testimony. What the ALJ did do was to advise and try to explain to the CEO that she was not to present her argument about what she concluded the facts showed when questioning the employee, but instead needed to focus on asking questions. In explaining this, the ALJ told the CEO on several occasions that he was not trying to cut her off from questioning the employee, and he allowed her to go ahead and ask the employee questions. Furthermore, the tape reveals that after the CEO responded that she had nothing further she wanted to ask the employee, the ALJ allowed the CEO to present further testimony. At this point the CEO testified that she felt there was an inconsistency in the employee's testimony that the president asked for the keys and the statement in Exhibit 3. Specifically, the statement prepared by the investigator showing the employee stating, "At that point I stated that the conversation was over. I gave him my keys and phone and left." As noted above, this alleged inconsistency seen by the CEO is based on her interpretation of what the statement contained in Exhibit says. Following the employee's testimony explaining what had occurred in his May 30 conversation with the president, the ALJ asked if there were any more questions or testimony and the CEO responded, "No." Finally, while the CEO may have considered the ALJ's manner as intimidating and coercive, the tape fails to reveal anything improper on the part of the ALJ in his manner of explaining what the CEO's focus should be when questioning the employee, or at any other time during the hearing.

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uploaded 2004/03/11