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


LAKISHA K ALLEN, Employe

ROMANCE FOODS CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606790RC


On October 9, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 38 of 1997 the employe quit her employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On November 14, 1997, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the 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 for the employer, a manufacturer of pasta and sauces, for about 7 months as a receptionist. Her last day of work was September 12, 1997 (week 37).

The employer has a point system for attendance, and employes are discharged when they accumulate 5 points. The employe was notified in July of 1997 that she had accumulated 3 points.

On Wednesday, September 10, 1997, the employe had a meeting with her supervisor in which she was told she had not passed a "skill block" needed in order to receive a salary increase. The employe disagreed with her supervisor's assessment of her job performance and left the meeting angry and in tears. After the meeting the employe went back to her office and took down her personal pictures. She left work at 5:00 p.m., the end of her regularly scheduled work day.

On Thursday, September 11, the employe called in sick. The employe stated that her allergies were bothering her.

On Friday, September 12, the employe reported for work, but left at 10:45 a.m. to go home and take her allergy medicine, which she had forgotten to bring with her. The employe did not return to work that day. During the afternoon the employe's mother called and notified the employer that the employe's daughter had been taken to the hospital for stitches.

On Monday, September 15, the employe telephoned her supervisor and notified him that she was not feeling well and would not be in that day. The supervisor told the employe that he thought she was over her point limit for attendance and that she should turn in her key.

The employe's supervisor subsequently notified someone in the human resources department about his conversation with the employe. That person went through the employe's file and determined that she had not accumulated enough points to warrant discharge under the employer's policy. The employe had reached 4.5 points when she left work early on Friday, September 12, but would not have accumulated any further points on Monday because under the employer's policy only a single point is assessed in a 7-day period for absences based upon the same illness, even if not on consecutive days. The employer did not call the employe to tell her she was short of the 5 points, and later that week the employe turned in her keys.

The issue to be resolved is whether the employe quit or was discharged, and whether she is eligible for benefits based upon that separation from employment.

The employer contended that the employe quit. However, while the employe's demeanor at the Wednesday meeting and her subsequent removal of personal belongings from her office may have suggested that she intended to quit at that point, the employe called in sick the next day, reported for work on Friday, and continued to report her absences thereafter, all of which was consistent with a continued employment relationship. Moreover, the employer never indicated that it deemed the employe to have quit, and its actions in accepting her calls and permitting her to report for work on Friday suggest that it believed the employment relationship was ongoing. Indeed, the separation from employment did not occur until Monday, September 15 (week 38), when the employe's supervisor indicated that the employe should turn in her keys because she had accumulated too many attendance points. Although the employer indicated that it believes the employe wanted to get fired, the fact remains that it was the employer's decision to terminate the employment relationship and that the employe was not given the option of remaining employed.

Having concluded that the employe was discharged, a final question to resolve is whether her discharge was for misconduct connected with her employment. The evidence indicates that the employe was discharged before accumulating the maximum points allowed under the employer's no-fault attendance policy. Further, all of the employe's absences were for valid reasons and with notice to the employer. Under the circumstances, the commission sees no reason to conclude that the employe was discharged due to misconduct.

The commission therefore finds that in week 38 of 1997 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 38 of 1997, provided she is otherwise qualified.

Dated and mailed: March 31, 1998
lakisal.urr : 164 : 1  MC 688 VL 1007

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility, as its decision to reverse does not depend upon any differing credibility assessment. Although the commission differs with the administrative law judge's finding that the employe stated, "I don't know where I am on points-I'll I [sic] just turn in my keys," its disagreement with that finding is not based upon witness credibility, but upon a lack of support in the record for such a factual finding. The employe's firsthand testimony was that her supervisor told her, "I think you are over your point limit, so you need to turn in your key." The employer's testimony--which was solely by way of hearsay--was that the employe stated she did not know where she was on points and asked if she should turn in her key, to which her supervisor responded that she probably should. Thus, the employe and the employer agree that it was the supervisor who instructed the employe to turn in her keys.

cc: ROMANCE FOODS


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