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

KATHLEEN A FARBER, Employee

BEACON WIRELESS & COMMUNICATIONS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03402683AP


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 almost nine months as a sales manager for the employer, a cellular sales and service business. During the course of her employment, the employee repeatedly complained to the employer's owner about a co-worker's sexual harassment of her. The owner finally discharged the worker on May 12, 2003 but continued to question the employee whether the harassment actually occurred. She was upset by this continual questioning, as well as the owner's failure to implement a written policy to handle sexual harassment should it occur in the future.

On May 23, 2003, the employee became so frustrated with the owner's behavior that she slammed her hands on his desk and said, "I can't take this anymore. You've got my two weeks notice. My last day will be June 5." The owner responded by saying, "No, no, let's discuss this." The employee replied, "Okay, are you going to address all these issues?" The owner responded that he would attempt to do so and she returned to work. She did not act inconsistently with the employment relationship thereafter.

On June 2, 2003, the owner gave the employee a letter confirming his acceptance of her resignation and last day of work on June 5, 2003 (week 23). She did not work for the employer thereafter and sought payment of unemployment insurance benefits.

The first issue to be decided is whether the employee quit the employment or was discharged by the employer.

It has long been established that the resignation of an employee; evidenced by clear expression of the employee's intention to quit the employment, promptly and unconditionally accepted by the employer before the resignation is withdrawn by the employee, terminates the contract of employment. Schallock v. Ind. Comm. & Sprague Electric Co., (Dane County Cir. Ct., January 28, 1958).

The employer contended that the employee's tendering of her resignation ended the employment relationship. The commission disagrees. Specifically, although the employee did initially tender her resignation, the owner rejected it. They agreed to continue the employment relationship, with him attempting to address her concerns while she continued to work. The resignation was not unconditionally accepted and was voided. Thereafter, she did not act inconsistent with the employment relationship.

On June 2, 2003, it was the owner's decision to sever the employment relationship when he gave her the letter confirming June 5, 2003 as her last day of work. This constituted a discharge.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment.

Thus, the next issue to be decided is whether the employee's discharge was for misconduct connected with the employment.

Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). The employer failed to establish that the employee's actions prior to discharge constituted misconduct.

The commission therefore finds that in week 23 of 2003, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 23 of 2003, the employee was discharged by the employer and that the discharge was not for misconduct connected with the 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 23 of 2003, if otherwise qualified.

Dated and mailed May 7, 2004
farbeka . urr : 150 : 1   VL 1007.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge regarding his credibility impressions. He found the employee's testimony to be credible both as to her allegations of what had happened during the employment as well as the manner in which it ended. Thus, the commission's reversal is not based on any differing credibility assessment but on the differing interpretation of the law.


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uploaded 2004/05/10