JAMES L GIBSON, Employee

AMERITECH SERVICES INC, Employer

On July 30, 2003, the Department of Workforce Development issued an initial determination which held that the employee's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 21, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On August 29, 2003, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked a little over two years as a maintenance administrator for the employer, a telecommunications concern. The employee submitted a resignation on May 21, 2003 (week 21), and the issue is whether the separation from employment was a quit or a discharge. The commission concludes that the resignation was in lieu of a discharge and that the separation therefore was a discharge by the employer not for misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

The employee had poor attendance, due primarily to a manic-depressive disorder. One sequence of absences therefor was a two-week period in February, during which the employee was hospitalized. On or about May 5, the employee's supervisor told the employee if looked like his "FMLA" for the two-week period was all right. The employee and his supervisor were speaking on May 5, because the supervisor was giving the employee a one-day suspension (to be served on May 6) for an absence the employee had had the previous month (April 15). The employee was absent at that time due to a stomach virus.

As for the employee's two-week absence in February, in fact the employer had denied the employee's request for FMLA coverage of that absence, by April 17 letter. The employer denied the employee's request because the employee had requested that the absence begin February 8 and medical information from the employee's physician indicated that the absence started on February 11. There is no dispute, however, as to the reason for the absence: the employee's hospitali- zation for manic-depressive disorder.

The employee discovered on May 19 that his leave request for the February absence had not been approved. At that point, he discussed his employment status with his supervisor, because the employee was at the point in the employer's progressive disciplinary scheme where discharge for attendance failures was the next disciplinary step awaiting the employee. The employee asked his supervisor how it looked for his being fired. The supervisor said that it did not look good, that they were putting the paperwork together at that time. The supervisor asked the employee whether he had considered resigning, and suggested that a resignation would look better on a resume than a discharge would. He told the employee that, when an employee quits, the employee is eligible for rehire after a period of four months. The employee confirmed this policy with someone in the employer's employment office, and then submitted his resignation. Approximately a week later, the employer advised the employee that it would not rehire him.

The employee had just been informed that a two-week absence he had three months previously, was now considered unexcused. The employee was at the discharge step in the employer's progressive disciplinary scheme. The employee asked his supervisor how it looked for the employee's being fired. The supervisor responded by informing the employee that the employer was "putting the paperwork together" at that time. On this evidence, which comes primarily from the employee's supervisor, the employee's resignation letter was in lieu of the discharge the employer was going to impose upon the employee but for the resignation letter. When an employee asks how it looks for his getting fired, and the employer responds that it is putting the paperwork together at that time, the employer is informing the employee that it is in the process of discharging him.

Nor, finally, can the discharge be said to have been for misconduct for unemployment insurance purposes. Misconduct under Wis. Stat. § 108.04(5) is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The absences for which the employer discharged the employee primarily were due to illness, and absences due to illness do not reflect an intentional disregard of an employer's interests.

The commission therefore finds that, in week 21 of 2003, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 21 of 2003, if he is otherwise qualified.

Dated and mailed April 16, 2004
gibsoja . urr : 105 : 2   VL 1007.15

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission has only held the employer to the testimony provided by the employer's own witness at hearing, the employee's supervisor. The factual circumstances which are not in dispute, as a matter of law constitute a resignation in lieu of discharge. As such, the separation is properly characterized as a discharge and not as a voluntary quit.

The employee had alleged, in the petition for review, that his supervisor was not properly sworn in, before giving testimony at the hearing. The commission has listened to the hearing tape; in fact, the supervisor was sworn in, and properly.

cc: 
SBC
Continental Consultants

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

uploaded 2004/04/19