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

MARY C DIETZEN, Employee

TRANSPORTATION DEPARTMENT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402711AP


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a business that provides security for air passengers, for about a year and a half as a screening manager. Her last day of work was May 27, 2004 (week 22).

On April 29, 2004, the employer sent the employee a "notice of proposed removal" based upon allegations that she had left the exit lane unattended on one or more occasions. On May 26, 2004, the employer's human resource director telephoned the employee at home and notified her she was discharged. However, later the same day the employee received a call from the deputy federal security director indicating that the discharge was a mistake and that she could return to work the next day.

On May 27, 2004, the deputy federal security director met with the employee and explained that the employer's attorney determined the employer did not have cause to discharge her, and that she could keep her job, subject to a disciplinary suspension. The security director informed the employee she would have to earn back the trust of her subordinates, and stated that it would be a challenge for her to resume her duties. The employee responded that it would be difficult and stressful to work under those conditions and that she did not want to stay in the position.

The initial question presented is whether the employee quit or was discharged.

A month after having issued a "notice of proposed removal," the employer unambiguously informed the employee she was discharged. Although the employer later changed its mind and told the employee to return to work, an employer cannot unilaterally rescind a discharge any more than an employee can unilaterally rescind a resignation. In this case, the employer initiated the separation when it notified the employee of her discharge, and the employment relationship was already severed at the time it told the employee she could return to work. The commission believes that the employment separation under these facts is more accurately characterized as a discharge than as a voluntary quit.

Having concluded that the employee was discharged, a secondary issue to resolve is whether her discharge was for misconduct connected with her employment.

The employer contended that the employee left the exit lane unattended on one or more occasions. However, the employee denied having engaged in any culpable conduct and the employer presented no competent evidence to the contrary.

The commission, therefore, finds that in week 22 of 2004, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2004, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 14, 2005
dietzma . urr : 164 : 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 about witness credibility and demeanor. The commission's reversal does not rely upon an assessment of witness credibility but is as a matter of law.


cc:
Transportation Department
c/o UC Express

John Carlson, Deputy Federal Security Director


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uploaded 2005/01/18