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

VALERIE L HALBUR, Employe

SHORE PERSONNEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600374RC

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a temporary help worker for the employer, a temporary help agency. Her last day of work was November 14, 1997. At that time her assignment ended and the employer had no additional work for the employe. She was next offered work on December 9, 1997. She initially accepted the offer of work to begin December 10. However, the employe had an emergency on December 10, and at 6 a.m. her husband notified the employer that the employe would not be able to appear for her scheduled shift. The employe's husband was told to have the employe contact the employer when she returned to town. The employe did not thereafter contact the employer.

The commission finds that the employe failed to accept an offer of work in week 50 of 1997 The employment relationship between the employe and the employer ended on November 14, 1997, when the employe completed an assignment for the employer and she was not offered or assured of future assignments. The employer never testified that it gave the employe assurance that an assignment would be provided within seven days or any designated period of time. The employment relationship therefore ended. While the employe initially agreed to accept the employer's offer of new work, she did not actually perform any services for the employer in the new assignment. Therefore her actions constitute a failure to accept offer of new work.

The commission therefore finds that in week 50 of 1997 the employe did not voluntarily terminate her employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 50 of 1997 the employe failed to accept an offer of new work within the meaning of Wis. Stat. § 108.04(8)(a).

DECISION

The decision of the administrative law judge is reversed. This matter is remanded to the hearing office for a hearing and decision on whether the employe's failure to accept work in week 50 of 1997 was for a reason that would permit benefit payment.

Dated and mailed: April 9, 1998
halbuva.urr : 132 : 1  VL 1025 VL 1035 SW 853

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has reversed the appeal tribunal's finding that the employe voluntarily terminated her employment as a matter of law. The employment relationship clearly ended on November 14, 1997, when an assignment in which the employe was placed ended and the employer did not offer the employe additional work. The employment relationship was severed by the employer's failure to offer the employe work on and after November 14. Therefore, the employer's offer of work on December 9, to begin December 10, must be viewed as an offer of new work. Further, the commission notes that whether the employe quit her employment was not noticed as an issue for hearing. The commission therefore remands the matter back to the hearing office for a hearing and decision on whether the employe's failure to accept the employer's offer in week 50 of 1997 was for a reason permitting benefit payment. The commission's reversal of the appeal tribunal decision reinstates the initial determination. As a result, no overpayment exists as a result of the commission's decision. However, the overpayment may be reinstated if the appeal tribunal decision finds that the employe did not have good cause for refusing the employer's offer of work. Further, any benefits the employe receives as a result of the commission's decision may also be subject to recovery by the department if the employe is later determined not eligible for such benefits.

cc:
SHORE PERSONNEL INC

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