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

JAMES E COTTON, Employee

CROWN SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03607152MW


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 sporadically for the employer, a temporary staffing service. His most recent term of employment lasted about five weeks. His last day of work was April 2, 2003 (week 14).

During his most recent term of employment, the employee worked for a single client on an as-needed basis. The employee last performed services for the client on April 2. He was not needed on April 3 or 4. On April 7, at 4:30 p.m., the employer left a message on the employee's answering machine notifying him that he could return to work for the client the following day. At approximately 6:00 p.m. the employee called back and stated that he wanted the next day off to visit his mother, who was ill. The employee was told that if he did not go to work for the client he would be replaced. The employee stated that he did not want to quit and that he would be available on the following day, April 9. The employee called the employer on April 8 and 9 looking for work, but the employer had replaced the employee at his assignment and did not offer him any other work.

The question to decide is whether the employee quit or was discharged, and whether he is eligible for benefits based upon that separation. The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer contended that the employee quit by being unavailable for work on April 8. However, while the employer notified the employee it would replace him in the assignment if he did not work on the day in question, a discharge is not converted to a quit simply because the employer issues an ultimatum. Rather, the focus is on the employee's intent. The employee had the right to take a day off of work with notice to the employer, and his actions in doing so were not inconsistent with a continuing employment relationship. This seems particularly true where the employee did not have prior notice that the employer wanted him to work on the day in question. Finally, the fact that the employee called the employer on April 8 and 9 is a further indication that the employee intended to continue the employment relationship.

Under all the circumstances, the commission concludes that the employee did not quit, but was discharged by the employer when it replaced him in his assignment and offered him no further work. The employee's discharge under these circumstances was not due to misconduct.

The commission therefore finds that in week 14 of 2003 the employee was discharged and not for misconduct connected with his employment, 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 14 of 2003, provided he is otherwise qualified. He is not required to repay the sum of $2,130 to the Unemployment Reserve Fund.

Dated and mailed April 15, 2004
cottoja . urr : 164 : 1 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is not based on a differing assessment of witness credibility. Rather, the commission has arrived at a different result when applying the law to essentially the same set of facts as that found by the appeal tribunal.


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


uploaded 2004/04/20