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

PAUL F BLAINE, Employee

RCM TECHNOLOGIES (USA) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04006331MD


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 five months for the employer, a staffing business. The employee provided services at a client business located near Milwaukee. The employee commuted daily from Fond du Lac for the full-time work which paid $17 an hour.

Pursuant to the client's plan to directly hire workers from the employer, the employee was instructed to complete an application with the client business in July 2004. The client supervisor led the employee to believe that he would be permanently hired but, then, on Friday, July 30, 2004, the supervisor informed the employee that he would not be hired permanently. The supervisor also informed the employee that he would be laid off effective Friday, August 27, 2004 (week 35) and warned the employee that he and the remaining temporary workers would be watched closely and would be discharged immediately if there were any irregularities in their work performance.

The employee worked Monday, August 2, 2004 (week 32). Upon reporting to work on Tuesday, August 3, 2004 (week 32), the employee and another temporary worker, who also commuted daily from Fond du Lac, met with the client supervisor. The employee asked if the layoff could be accelerated and the supervisor agreed to lay the employee and his coworker off immediately.

Upon leaving the client business, the employee contacted the employer, the staffing business. He left several messages to determine whether other work was available but the staffing business never offered him additional work. The employee filed a claim for unemployment insurance benefits.

The first issue to be decided is whether the employee quit or was discharged.

Although the employee performed services at the client business, he was employed by the staffing service. The staffing service ended his employment when it declined to place him at other assignments upon the cessation of work at the client business. This failure by the staffing service was the actual termination of employment and it constituted a discharge. The employee did not quit.

Wisconsin Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits. Accordingly, the next issue before the commission is whether the discharge was for misconduct.

Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). Neither the employer nor the client appeared at the hearing and no evidence of misconduct was presented. While the employee did speak with the client supervisor about accelerating the lay off, given the events and the tenuous nature of the remaining work at the assignment, the employee's request was not unreasonable. More importantly, there is no evidence that had the client or employer asked him to continue, he would not have.

The commission therefore finds that the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but was discharged and not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 11, 2005
blainpa . urr : 150 : 4   VL 1007.01  MC 626 VL 1025

/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 the reversal was not based on a differing view as to the credibility of the witness, but instead upon a differing legal conclusion.

 

cc: RCM Technologies Inc.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/03/14