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

AMY J JACOBSON, Employee

HOOTERS OF AMERICA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007303JV


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 five months as a "hooter girl" for the employer, a Hooter's restaurant. The employee was scheduled to work at 4:30 p.m. on Wednesday, September 3, 2003 (week 36). She arrived at the restaurant early for her shift but left before 4:30 p.m. without any notice to management. Four hours later, the employee telephoned the employer's assistant manager, indicating that she left due to a family member's illness and hospitalization.

The employee reported for work as scheduled the next day, Thursday, September 4, 2003 (week 36) and was questioned regarding her leaving without notice on Wednesday. The employee again explained that she left due to a family emergency was unable to locate a manager prior to leaving. When questioned whether she would be able to provide documentation to substantiate her absence, she responded that she would not be able to do so. The general manager suspended the employee, pending further review of the situation.

On Monday, September 8, 2003 (week 37), the general manager notified the employee that she was discharged. Following the discharge, the employee sought payment of unemployment insurance benefits.

The issue to be decided is whether the employee quit or was discharged and, ultimately, whether she is eligible for unemployment insurance benefits.

A voluntary termination may include a situation in which an employer discharges the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980). In general, the Supreme Court has held that when an employee shows that he or she intends to leave his or her employment by conduct inconsistent with the continuation of the employment relationship, that employee intended and did leave his employment voluntarily. Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The employer contended that the employee's absence without notice constituted a quitting pursuant to its policy that leaving a shift without notice was job abandonment. This contention cannot be sustained.

First, simply because an employer decides that a worker quits under certain circumstances, determined that the employer's sole discretion, does not make it so. Whether a worker has in fact quit depends on the individual circumstances of each case. Cunningham v. PA Staffing Ser., Inc., UI Dec. No. 98600293RC (LIRC, April 17, 1998).

In this case, the employee was absent for four hours of a shift without notice. At the four-hour point she contacted the employer to explain her absence. She then reported to work as scheduled the next day. Although the administrative law judge found that the employee was directed to bring in substantiation of her absence after the Thursday meeting, the facts do no support this finding. Instead, the general manager simply testified that the employee responded that she was not able to provide documentation when questioned by him on Thursday the 4th.  She acted consistently to maintain the employment thereafter. In Burgess v. Metro Clean Corp., UI Dec. Hearing No. 99602418MW (LIRC, November 2, 1999), the commission held that,

a single absence even for an invalid reason does not amount to conduct inconsistent with the continuation of the employment relationship from which it must be inferred that the employee quit her employment.

Similarly, the commission finds that the employee's single absence from work for four hours without notice was not so inconsistent with the continuation of the employment relationship as to actually sever it. Instead, it was the employer's decision to end the employment on September 8th and this constituted a discharge.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute.

Prior to this last incident, the employee was never formally disciplined or warned that her job was in jeopardy. Given the employee's failure to appear at the hearing to establish that her absence was for a valid reason, this was an isolated incident of absence without proper notice and without a valid reason. Such behavior is certainly poor judgement and worthy of some discipline but it alone does not rise to the level of conduct considered to be misconduct by the Boynton Cab standard.

The commission therefore finds that in week 36 of 2003, the employee did not voluntarily terminate her employment within the meaning of Section 108.04(7)(a) of the statutes.

The commission further finds that in week 37 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 Section 108.04(5) of the statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee's eligible for benefits beginning in week 37 of 2003, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 14, 2004
jacobam . urr : 150 : 8   VL 1007.05  MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is not the result of any differing impression of witness credibility, but is based upon a differing legal interpretation of the undisputed facts.

cc: Hooters of Janesville - Janesville, WI



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