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

BRIAN P BROWN, Employee

WISCONSIN HOSPITALITY GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03611543MW


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 about twenty-one weeks as a delivery driver for the employer, a company that operates a franchise pizza delivery business. His last day of work was on October 20, 2003 (week 43).

The initial issue to be decided is whether the employee quit his employment or was discharged. If the employee quit the issue is whether he did so for any reason permitting immediate benefit payment. If the employer discharged the employee the issue is whether it was for misconduct connected with his work.

On October 20, 2003, the employer laid off the employee from his duties as a pizza delivery driver because he was no longer insurable under the employer's risk management insurance policy. The owner offered him a position as a customer service representative, which he accepted. The owner left it up to the manager to put the employee on the schedule. The employee attempted to contact the manager on the telephone and was unable to get a hold of her. The employee then went in person to the restaurant and found that he was not on the schedule. The employee left a message with another manager to have the other manager call him when there was available work. The employee was not contacted by the manager or anyone else from the employer's business.

The commission finds that the employer initiated the separation in this matter and therefore the employee was discharged. It was the employer who removed the employee form his customary work for the employer. It was reasonable for the employer to direct the employee to contact the manager to obtain his schedule. However, the employee attempted by telephone and in person to obtain his work schedule. The employee acted reasonably in leaving word that the manager should contact him when work was available. The employee did not intend to end his employment and his actions were not inconsistent with continued employment. The employee was laid off because the employer's insurance company would no longer insure him. The commission has previously held that a discharge because of an insurer's refusal to continue insurance coverage on a worker is not a discharge for misconduct connected with the worker's employment. Brower v. Cal-Inland Inc., UI Dec. Hearing No. 89201279 (LIRC May 25, 1990).

The commission therefore finds that in week 43 of 2003 the employee was discharged but not for misconduct connected with his work 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 43 of 2003, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 2, 2004
brownbr . urr : 132 : 1   MC 628 MC 616

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is based on undisputed facts presented by the employer and the employee.


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uploaded 2004/06/07