BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

SUZANNE G. CANNEY, Employee

Involving the account of

OLSTEN OF MILWAUKEE, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92601990MW


On April 28, 1992, an Administrative Law Judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter finding that in week 3 of 1992, the employe did not voluntarily terminate her employment with the employer but was discharged and not for misconduct connected with her work. Accordingly, benefits were allowed. The employer filed a timely petition for Commission review of the adverse Appeal Tribunal Decision.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven months as a data entry person for the employer, a temporary employment service. Her last day of work was January 14, 1992 (week 3).

The employe's last assignment with the employer was scheduled to end on January 17, 1992 (week 3). The employe was scheduled to work 20 hours in that week at a rate of pay of $6 per hour. The employe worked five hours on January 14, 1992. After completing her work on that day, the employe telephoned the employer and notified the employer that she could not complete her assignment because she had to attend an out-of-town funeral of a relative. She notified the employer that she did not know when she would return.

The employe telephoned the employer at approximately 6:30 a.m. on Monday, January 20, 1992 (week 4), and notified the employer that she was able to work and available for work. The employer had no work available for her at that time and placed her on an availability list.

The initial issue to be determined is whether the employe voluntarily terminated her employment or was discharged by the employer. A secondary issue is whether the employe is eligible for benefits based on the separation of employment.

The employer contended that the employe quit her employment when she failed to finish her assignment on January 14, 1992 (week 3). However, her absence from work, to attend the funeral, was reasonable. Furthermore, when she notified the employer that she would not be completing the assignment, the employer did not indicate that it considered her to have quit at that time. While the employer's policy provided that workers who do not complete assignments are considered to have quit, the unemployment compensation laws are not determined by an employer's policies. The facts of this case do not indicate an intention on the part of the employe to voluntarily terminate her employment. On the contrary, this case illustrates no more than a situation in which an employe is going to be absent from work, and promptly notifies the employer of that absence. The mere fact that the employe is unable to pinpoint an exact return date does not evince an intention to quit the employment relationship. In this case, the employment relationship was severed by the employer on January 20, 1992 (week 4), when the employer had no further work available for the employe.

As noted above, the employe worked five hours for the employer at a rate of pay of $6 per hour in week 3 of 1992, thus earning total wages in the amount of $30. However, had the employe completed her last assignment with the employer she would have worked an additional 15 hours in that week at a rate of pay of $6 per hour for total additional wages of $90. Section 108.04 (1)(a) of the Statutes provides that an employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by her current employing unit to report for work actually available within such week and is unavailable for or unable to perform, some or all of such available work. Section 108.04 (1)(a) of the Statutes requires that the Department treat the amount the employe would have earned as wages for that week in such available work as wages earned by the employe and compute benefits payable including such additional wages as set forth in section 108.05 (3)(a).

In this case, the employe was notified of additional work available and she was unable or unavailable for such work in week 3 of 1992. She could have earned an additional $90 in wages in addition to the $30 already earned for a total of $120. Department records indicate that the employe was paid benefits in the amount of $99 in week 3 of 1992, but was due only $39, for a total overpayment of $60. Department records further indicate that in week 27 of 1992, the employe was paid emergency unemployment compensation benefits in the amount of $106. However, due to the overpayment of benefits in week 3 of 1992, she was due $50 of regular UC benefits in lieu of $46 paid in emergency unemployment compensation benefits. Therefore, she was overpaid emergency unemployment compensation benefits in the amount of $46.

The Commission therefore finds that in week 3 of 1992, the employe did not voluntarily terminate her work with the employing unit, within the meaning of section 108.04 (7)(a) of the Statutes.

The Commission further finds that in week 4 of 1992, the employe was discharged by the employing unit, within the meaning of section 108.04 (5) of the Statutes, and that her discharge was not for misconduct connected with her work, within the meaning of that section.

The Commission further finds that in week 3 of 1992, the employe was with due notice called on by her current employer to perform work actually available within that week and was unavailable for, or unable to perform, some or all of such available work, within the meaning of section 108.04 (1)(a) of the Statutes.

The Commission further finds that the employe was paid benefits in the amount of $60 in week 3 of 1992 and $46 in week 27 of 1992, for a total overpayment of $106, for which she was not eligible and to which she was not entitled, within the meaning of section 108.03 (1) of the Statutes and that, pursuant to section 108.22 (8)(a) of the Statutes, she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The Appeal Tribunal Decision is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, benefits will be reduced in week 3 of 1992 by including in the computation of benefits payable the actual or estimated amount of wages the employe would have earned had she performed all available work in that week. She is eligible for benefits continuing in week 4 of 1992 and thereafter, if she is otherwise qualified. She is required to repay the sum of $106 to the Unemployment Reserve Fund.

Dated and mailed December 4, 1992
132 : CD750  VL 1001.09   VL 1007.05 t

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The Commission has essentially accepted the findings of fact and conclusions of law made by the Appeal Tribunal relative to the separation of employment at issue. However, the Commission has modified the Appeal Tribunal Decision to reflect the application of section 108.04 (1)(a) of the Statutes.

In the petition for review, the employer states that it believes the Administrative Law Judge was confused as to when an employer/employe relationship is severed for UC purposes. The Commission disagrees. The Administrative Law Judge correctly found that the employment relationship was severed when the employer was unable to provide the employe continuing work. The Commission, like the Appeal Tribunal, finds that the employe did not quit her employment and did not intend to quit her employment by her actions. The employe's actions in week 3 of 1992, constituted no more than an employe notifying her employer that she would be absent. The Commission acknowledges the employer's policy that failure to complete an assignment equals a quit. However, that policy is not embodied in the unemployment compensation law. Under the unemployment compensation law, absence with notice and for a valid reason does not constitute a voluntary termination of the employment relationship.


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