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


DONNA M KRAFT, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606601WB


On September 27, 1997, the Department of Workforce Development issued an initial determination which held that the employe quit her employment but not for a reason allowing the immediate eligibility for unemployment insurance. The employe timely filed a request for hearing, and hearing was held on November 20, 1997 in West Bend, Wisconsin before a department administrative law judge. On November 21, 1997, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. The employer timely filed a petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, and after consultation with the administrative law judge regarding credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during the course of approximately a year in various assignments for the employer, a temporary help agency. Her last day of work was September 8, 1997, at which time the client to which she had been assigned requested that the employe not be assigned to the client any longer because of her excessive number of absences. The employer subsequently offered a new assignment to the employe, which the employe accepted but did not report for. The issue is when the separation from employment occurred, and whether the employe is eligible for unemployment insurance notwithstanding the separation. The commission concludes that the separation from employment occurred when the employe failed to report to her September 15, 1997 (week 38) assignment, and that her failure to do so was a quit of employment within the meaning of Wis. Stat. § 108.04(7). The commission therefore reverses the appeal tribunal decision.

On September 10, 1997, a representative from the employer telephoned the employe to inform the employe that her assignment with her current client had been terminated by the client, because of the employe's excessive number of absences. At that time, the employer gave the employe a return-to-work date of September 16. On September 12, 1997, the employer telephoned the employe and offered her a new assignment, as a press operator, second shift and starting September 15. The employe accepted this assignment. On September 15, however, she was absent from the assignment without notice to either the client or the employer.

When an employe voluntarily quits employment, the employe is ineligible for unemployment insurance until he or she meets certain requalification requirements, unless the quit was with good cause attributable to the employer or for another 108.04(7) exception to the disqualification of Wis. Stat. § 108.04(7)(a). For there to be a quit, though, an employe need not state outright that he or she is quitting the employment. For unemployment insurance purposes, a quit includes conduct inconsistent with an intent to continue the employment relationship. The employe's September 15 absence without notice from the assignment she agreed on September 12 to take, meets this standard.

The commission therefore finds that, in week 38 of 1997, the employe terminated her employment with the employer, but not for a reason constituting an exception to the disqualification of Wis. Stat. § 108.04(7)(a). The commission also finds that the employe received benefits totaling $646, for weeks 38 through 44 of 1997, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of departmental error and did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, the administrative law judge indicated, during the credibility conference with the commission, that he found the September 12 offer to one of new work because the employment relationship had ended as of September 10, 1997 (when the employer ended the employe's assignment with the client in question). The administrative law judge reasoned that the employer had no documentation to the effect that the employe had been offered another assignment at that time. The employer's computer records indicate, though, that the employer gave the employe a return-to-work date of September 16, when the employer telephoned the employe on September 10 to inform her that her assignment at the client in question was over. That was all that was needed for the employment relationship to continue.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 38 of 1997, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. Because of the finding of departmental error, the employe is not required as a result of this decision to repay the above-mentioned benefit overpayment. Department records indicate, finally, that the employe satisfied the above-stated requalification requirements as of week 46 of 1997.

Dated and mailed: April 15, 1998
kraftdo.urr : 105 : 3 VL 1001.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's basis for reversal is that the administrative law judge did not note the employer's September 10 indication to the employe that work would be available for her as of September 16, as continuing the employment relationship.


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