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

EUGENE SMITH SR, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03608179MW


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

From April 28, 2003 (week 18) through August 7, 2003 (week 32), the employee worked at a client business for the employer, a staffing service. The assignment was full-time, first shift and paid $10.00 per hour. The assignment ended on August 7, 2003 (week 32) and the employee was so notified. The employee filed 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.

A temporary help employment relationship "continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future." Jones v. Seek Inc., UI Dec. Hearing No. 99601034MW (LIRC July 6, 1999).

The employer contended that the employee refused an offer of continuing work on Friday, August 8, 2003 to start on Monday, August 11, 2003 and argued that this refusal constituted a quitting. The employee denied receiving a bonafide offer of continuing work on the 8th. The employer's contention cannot be sustained. In particular, the employer's only witness at the hearing had no firsthand knowledge regarding the alleged August 8th offer. No records were introduced supporting her allegation and no foundation was offered as to how she knew the offer was made. She also failed to explain why the person who allegedly made the offer was not present as a witness. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The employer's only evidence was hearsay and, while hearsay may be offered, the administrative law judge and commission still are bound by Wis. Admin. Code § DWD 140.16, which states, in material part, that no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats. The employer failed to establish that this hearsay was admissible under ch. 908 Stats. and while the employee's testimony was contradictory and lacked credibility, at no point did he admit to receiving and/or refusing a bonafide offer of continuing employment on August 8, 2003. As such, the employer failed to meet the burden of establishing that continuing work was available after the first assignment ended.

The first assignment ended at the direction of the employer and, thus, 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). The employer did not present any evidence that the first assignment ended due to misconduct.

The commission therefore finds that in week 32 of 2003, the employee did not voluntarily terminate his employment with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 32 of 2003, the employee was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 32 of 2003, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 27, 2004
smitheu2 . urr : 150 : 1    VL 1025  PC 714.07 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision because the reversal is not based on any differing credibility assessment. Instead, the reversal is based upon a differing legal conclusion as to what the hearing record in fact established.


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uploaded 2004/05/28