MARY M SAWYER, Employee

SCANHOME LTD, Employer

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 makes the following:

The employee worked nine months as a part-time salesperson for the employer, a retail store. Her last day of work was July 22, 2004 (week 30).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee advised the employer in writing that she would be undergoing an ultrasound on Thursday, July 22; was scheduled for surgery on her leg on Friday, July 23; would be off on Saturday, July 24; and was undergoing a second ultrasound on Monday, July 26, and "should be able to be in by 12:00 if leg is OK."

The surgery turned out to be more extensive than the employee's physician had anticipated. On July 23, because the pain medication she had been administered interfered with her ability to communicate clearly, the employee asked her friend Angie, who was present with her in the hospital, to call the employer.

Angie testified that she told the employer that the employee's surgery had been more extensive than anticipated, and the employee, as a result, would not be able to return to work until Monday, August 2.

The employer testified that, when Angie called on July 23, she said only that the employee's surgery was over and she was recovering, but it was not clear when she would be able to return to work; and that the employer told Angie that the employee needed to call and to bring in a doctor's note.

Regardless of which version of events is more credible, the employee understood from her subsequent conversation with Angie that the employer had been informed that she would not be able to return to work until August 2.

The employee did not provide notice of her absence to the employer or report to work her scheduled shifts on July 27, 29, or 30. The employee did call the employer the afternoon of July 30 (week 31) to ask what her schedule would be for the following week (week 32) but was told that she had been discharged.

The employee had not been absent from work prior to July 22, 2004.

The key element to determining whether a separation is a quit or a discharge is whether the employee shows that she intends to leave her employment, and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employment relationship. Nottelson v. DILHR Department, 94 Wis.2d 106, 287 N.W.2d 763 (1980); Holy Name School v. DILHR, 109 Wis.2d 381, 326 N.W.2d 121 (Ct. App. 1982); Janzen v. Roehl Transport, Inc., UI Hearing No. 02000217MD (LIRC Jan. 31, 2003); Cotton v. Crown Services, UI Hearing No. 03607152MW (LIRC April 15, 2004).

The employee's request that her friend contact the employer on the day of surgery, her efforts in obtaining a medical release (exhibit #7) during her absence, her understanding that the employer was aware that she would not be able to return to work until August 2, and her contact with the employer on July 30 to ascertain her work schedule for the following week), support a conclusion that the employee was reasonably diligent in maintaining contact with the employer and intended to return to work. See, Janzen, supra. As a result, the separation was a discharge, not a quit.

The next issue then is whether this discharge was for misconduct. The medical evidence of record (exhibits #6, #7) demonstrates that the employee had a valid reason for her absence. In addition, as discussed above, the record shows that the employee was reasonably diligent in giving notice of her absence. As a result, the record does not support a conclusion of misconduct.

The commission concludes that, in week 31 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2004, if otherwise qualified.

Dated and mailed December 17, 2004
sawyema . urr : 115 : 4 MC 626 MC 605.05 VL 1007.05

/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 reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Attorney Michael Berken

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uploaded 2004/12/20