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

KEVIN N WITTROCK, Employee

CUSTOM COLLISION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03201762RH


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 one and a half years as a general body repair worker for the employer, an automotive body repair business. His last day of work was September 5, 2003 (week 36).

While 8 a.m. was the employee's normal start time, the owner expected the employee to report to work at 7 a.m. on Friday, September 5, 2003 to fix a problem from the day before. The employee did not realize he was to be at work at 7 a.m. and arrived at 8 a.m. When the employee arrived, the owner was upset with him and blew up, telling the employee that if he could not be at work on time he should pack up his "shit" and "get the fuck out of the shop." The employee responded that he was leaving. The employee never reported to work thereafter and initiated a claim for unemployment insurance benefits.

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

The key element to determining whether an employee voluntarily terminates employment 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 employee reported to work at his normal scheduled start time. He did not intend to quit and never told the owner that he was quitting. Instead, he agreed to leave only in response to the owner's behavior.

The administrative law judge found the employee's decision to leave was a quitting. Specifically, she interpreted the owner's statement as conditional, allowing the employee the option to continue working if he arrived to work as scheduled. The commission disagrees, finding that the statement was directive rather than conditional in nature. The owner was angry that the employee did not report to work early and told him to pack up his materials and leave. His direction was punctuated with expletives. Typically, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177, 187(1961). In Livingston v. L&D Trading Post Inc., U I Dec. Hearing No. 02200117EC (LIRC June 13, 2002), the commission found that an owner's statement that, "I want your keys and your boat tickets on the counter right now" constituted a discharge. Demanding a worker's keys is tantamount to a discharge and, if an employer intends something different, they need to make that clear. Eiler v. Shoney's Restaurant, U I Dec. Hearing No. 01402295AP (LIRC October 26, 2001). Similarly, in this case, the owner's specific direction that the employee pack up his material before leaving, made it clear that the employment was over once the employee left. This was the owner's decision and had he intended something different he failed to make it clear. As such, the commission finds that the employee was discharged.

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

Prior to the last incident, the employee had not received any formal discipline. To the contrary, the owner testified that the employee was a great worker. Under these circumstances, the employee's failure to realize that he was supposed to come in early on the 5th is not misconduct.

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

The commission further finds that in week 36 of 2003, the employee was discharged and his discharge was not for misconduct connected with his employment within the meaning of Sec. 108.04(5) of the statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 36 of 2003, if otherwise qualified.

Dated and mailed May 27, 2004
wittrke . urr : 150 : 8  MC 626 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge regarding her credibility observations and assessments. The administrative law judge found the employer to be generally more credible than the employee. Particularly, she believed that the owner must have told the employee on Thursday about the early start time, given his outburst on Friday morning. The commission agrees with the administrative law judge's characterization of the owner's outburst and use of profanity. However, the commission does not agree that the owner was generally more credible than the employee. Specifically the owner minimized his behavior Friday morning and initially provided a statement that the employee reported to work late at 8:20 a.m. and that his normal start time was 7 a.m. (See Exhibit 2). At the hearing, the owner then testified that 7 a.m. was not the employee's normal time but was a schedule deviation on the last day due to problems the day before. As such, the commission does not credit the owner's statement that he specifically told the employee to report to work at 7 a.m. on the 5th or that the employee had the option of continuing the employment given the owner's outburst.


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uploaded 2004/05/28