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

ROBERT E POLK, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602403MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if he is otherwise qualified. This matter is remanded to the department for an investigation on whether the employee had due notice of work available under Wis. Stat. § 108.04(1)(a) in week 3 of 2004.

Dated and mailed July 20, 2004
polkrob . usd : 150 : 2 VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee refused a client position for week 3 of 2004 and that this refusal constituted a quitting that was not within any exception to allow for unemployment insurance benefits. However, the Commission has held that not every work refusal in the context of a temporary help agency constitutes a quitting even if the employer has a policy to treat it as such. Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004). Specifically, in Thompson, the commission stated,

The nature of the relationship between a temporary help agency and an employee contemplates that assignments will be offered at a variety of locations. The employee's failure to accept one specific assignment at one particular location does not in and of itself reflect an intent on the part of the employee to voluntarily terminate his employment.

Following a review of the record in this matter, the commission agrees with the administrative law judge that the employee had no intent to sever the employment when he stated that he preferred to work at one assignment over the other. Similarly, the commission does not treat the employer's inability to immediately offer the employee another assignment as a discharge by the employer. Instead, the commission concludes that the correct issue is whether the employee failed to perform available work under Wis. Stat. § 108.04(1)(a). The commission remands that issue because the record does not clearly reflect how much the employee would make in the assignment, the number of hours available in the assignment, or how long the assignment was to last.



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uploaded 2004/07/27