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

ROBIN KIMBALL, Employee

HILTON GARDEN INN
APPLETON/KIMBERLY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402975AP


On July 31, 2004, the Department of Workforce Development issued an initial determination which held that the employee's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on September 29, 2004 in Appleton, Wisconsin before a department administrative law judge. On September 30, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission 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 the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked just over ten weeks as a clerk for the employer, a hotel/restaurant concern. His last day of work was April 15, 2004, and the issue is the proper characterization of the resulting separation from employment. The commission concludes that the separation is properly characterized as an indefinite layoff by the employer. The commission therefore reverses the appeal tribunal decision.

The employee was scheduled to work April 16-18, 2004. He did report to work on April 16, but told his supervisor he was not feeling well and asked if he could go home. The supervisor allowed the employee to do so. The employee remained ill the entire weekend, and telephoned notice of his absences on those days. When the employee had been at work on April 16, he had noticed that he was not on the work schedule for the following week. He had asked his supervisor why, but his supervisor had not known. At the beginning of the following week, on April 25, the employee reported to work and saw that his name still was off the schedule; at this point, the employee assumed he had been discharged. He did not ask anyone about the matter, as he did not see anyone around to ask. The employer assumed the employee had voluntarily terminated his employment, based upon the employee's having simply stopped reporting to work.

The dispostitive issue is the proper characterization of the separation from employment. The commission concludes that, under the narrow circumstances of this case, it was an indefinite layoff by the employer and, as such, a discharge. In finding that the separation had been a voluntary termination, the administrative law judge reasoned that the employee had the duty to definitely ascertain his employment status before concluding that the employment relationship had been terminated, as opposed to merely assuming he had been discharged. That reasoning would also be applicable in the present case, but for two factors. First, the employee did specifically ask his supervisor why he was not on the schedule after April 19 and his supervisor could not tell him. Thus, while the employee did not specifically seek out upper management to determine whether he had been discharged, he still made an effort to find out, from his superior, why he was not on the schedule. Second, the evidence establishes no basis upon which to conclude that the employee had not been indefinitely laid off. The employer conceded that the employee had lost his hours for the two weeks in question due to personnel changes at the employer that did not directly relate to the employee. There is no evidence in the record to suggest that the personnel changes were temporary, or that the employer had any provision in place for reassigning the employee to other work. Thus, regardless of the employee's beliefs or actions or lack thereof, the evidence establishes a layoff of two weeks' duration due to personnel matters unrelated to the employee and not communicated to him, and nothing in the way of a possible date of return to work.

The commission therefore finds that, in week 17 of 2004, the employee was discharged but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 17 of 2004, if he is otherwise qualified.

Dated and mailed December 14, 2004
kimbaro . urr : 105 : 1   VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case, as there were no disputes as to the respective witnesses' credibilities. Rather, as a matter of law the commission concluded that: 1. the supervisor's failure to tell the employee why he was no longer on the schedule, and 2. the actual reason why the employee was no longer on the schedule, make the separation a discharge and not a quit by the employee.

 


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