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

ROBERT D STEWART, Employee

NORTHWOODS CAFE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05200006RH


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 three weeks as a cook for the employer, a restaurant. His last day of work was December 10, 2004 (week 50).

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.

At the time of his hire, the employee informed Glen Wagner, one of the employer's owners, that he would like to continue working for the Camp 10 ski patrol every other Saturday. Glen Wagner told the employee that the employer would work around this other employment.

During the time period relevant here, the employee was under the supervision of the Department of Corrections and wore a monitoring bracelet. He was required as a condition of his supervision to work a consistent schedule and to provide his work schedule to his caseworker approximately two weeks in advance.

The employee's work schedule at the restaurant was prepared by Janet Clifford, the employer's head cook, one and one-half weeks in advance.

On Friday, December 3, 2004, Clifford, as the employee had requested, emailed him a scanned copy of the schedule she had prepared for the work period which included December 11. The scanned copy of the schedule received by the employee that day was illegible in part, and he was unable to discern whether he had been scheduled to work on Saturday, December 11. The employee was required to notify the Camp 10 ski hill that day whether he would be available to attend an instructional clinic on December 11. The employee would reasonably have assumed, based on the fact that he had been scheduled to work at the restaurant the previous Saturday (12/4/04), that he would not be scheduled to work on Saturday, December 11, 2004. As a result, the employee advised the Camp 10 ski hill that he would be attending the instructional clinic, which he was not permitted to reschedule, on December 11. The employee had previously advised his caseworker that he would be at the Camp 10 ski hill on December 11, consistent with his established schedule.

On Monday, December 6, 2004, the employee reviewed the posted schedule, and immediately advised Clifford that, as he had previously informed her, he was unable to work on Saturday, December 11. Clifford told him that she knew, but did not change the schedule. On December 8, 2004, the employee told Glen Wagner and Karen Wagner, the employer's owners, that he could not work on Saturday, December 11, and he was told that he needed to find his own replacement. The employee attempted to reach the other staff cook, but the cell phone number the other cook had provided the employer did not accept incoming calls, and, although the employee called her other number five to six times over a period of four to five days, there was no answer and apparently no way to leave a message. The employee told the owners that he had been unable to reach the other staff cook and asked the owners to help him find a replacement, but they told him it was his responsibility. Glen Wagner was a qualified cook and cooked for the restaurant at times.

On December 10, 2004, the employee was asked by the employer to substitute for the other staff cook who was unable to come to work that day, and the employee did so. This did not conflict with the work schedule the employee had provided to his caseworker, because he had mistakenly indicated on that schedule that he would be working at the restaurant that day.

On December 10, the employee asked Karen Wagner if the employer would be able to manage without him the next day, and Karen Wagner told the employee if he did not work his scheduled shift on Saturday, December 11, he should not bother coming back to work.

The employee did not report to work on December 11, 2004, and did not contact the employer thereafter.

The commission concludes that the separation was a discharge. Although, in attendance cases, the distinction between a quit and a discharge is not always clear, where an employee provides notice of his absence and otherwise manifests an intent to remain employed, the commission has generally held the separation to be a discharge. See, Guess v. Village of Miscoda-Grant County, UI Hearing No. 90-003206DV (LIRC Oct. 9, 1990) (although distinction between quit and discharge not always clear, separation for pattern of unexcused absences a discharge, but for failing without notice to report for work a quit-providing notice of subject absence shows employee did not intend to quit);  Sonnentag v. Liberty Homes, Inc., UI Hearing No. 98000411EC (LIRC Nov. 3, 1998) (key element to distinguishing quit and discharge is employee's intent); Darga v. Eastbay , Inc., UI Hearing No. 02006296GB (LIRC March 26, 2003) (separation for unsatisfactory attendance and for failing to provide documentation for final noticed absence a discharge). Here, the fact that the employee provided notice to the employer that he would be unable to work his shift on December 11 and attempted without success to find a replacement, and that the employer initiated the separation based on the employee's unexcused absence on December 11, support a conclusion that the separation was a discharge. See, Carmona v. Superior Health Linens, UI Hearing No. 99003473MD (LIRC Dec. 9, 1999).

The next question then is whether the employee was discharged for misconduct connected with his employment. A single absence, even for an invalid reason, does not support a conclusion of misconduct. Burgess v. Metro Clean Corp., UI Hearing No. 99602418MW (LIRC Nov. 2, 1999); Walstrom v. Easbay, Inc., UI Hearing No. 02008910GB (LIRC Oct. 10, 2003). Such a result is even more compelling here where the employee had a valid reason for his absence, i.e., his commitment, which reasonably relied upon a promise made to him by the employer at the time of his hire, to his other employer to attend a clinic which could not be rescheduled and to his caseworker to work his established schedule.

Moreover, although an employee has a duty to definitely ascertain what his employment status is before concluding that the employment relationship is fully terminated (see, Mindham v. ESA Services, Inc., UI Hearing No. 02403197AP (LIRC May 16, 2003)), the employee satisfied this duty here. The employee reasonably concluded, given Karen Wagner's emphatic statement to him on December 10, that he had been discharged when he did not report to work on December 11, and did not report to work or initiate contact with the employer thereafter as a result.

The commission concludes that, in week 50 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2004, if otherwise qualified.

Dated and mailed March 30, 2005
stewaro . urr : 115 : 1   MC 626

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the administrative law judge before reversing her 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.

 


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


uploaded 2005/04/19