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

JASON S KINKADE, Employee

NSR ROOFING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600138WB


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 a year and a half as a roofer for the employer, a roofing company. His last day of work was December 15, 2004 (week 51).

Between September and December of 2004 the employee was scheduled to work on Tuesdays, Fridays and Saturdays. During that time he failed to show up for work at least once a week. Most of the time he would ask off in advance of the shift he intended to miss. The employer disapproved of the employee's frequent absences and told him so often, sometimes on a weekly basis.

On Tuesday, December 21, 2004 (week 52), the employee failed to show up for work and did not tell his employer in advance that he would be absent. The employee spoke with the employer later that day on the telephone and asked for his paycheck. The employer told him that he was angry with him for missing so much work and that he was going to mail the check to him. The employee never worked for the employer again.

The initial issue for the commission is whether the employee quit or was discharged. If he quit, the next issue is whether the quitting was for any reason that would permit the immediate payment of unemployment insurance benefits. If he was discharged, the next issue is whether the discharge was for misconduct connected with the employment.

The employer never told the employee he was discharged yet the employee stopped working. The employee assumed that he had been discharged based on the employer's anger and statement that the check would be mailed to the employee. Typically, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961). Further, the commission has held that it is the employee's responsibility to clarify his or her employment status in ambiguous situations. Toeller v. Kaltenbrun Brothers Roofing Co., Inc., UI Dec. Hearing No. 02404146AP (LIRC April 15, 2003). Thus, the commission finds that the employee's decision to stop working without clarifying whether he was in fact discharged constituted a quitting. Next, the employee failed to establish that his quitting fell within any exception to allow for the immediate payment of unemployment insurance benefits.

The commission therefore finds that the employee was not discharged within the meaning of Wis. Stat. § 108.04(5) but voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and his quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits.

Department records reflect that the employee received $329.00 each week for the calendar weeks ending December 25, 2004 and January 1, 2005 (weeks 52 and 1) that he was not entitled to given the above findings, and the next issue before the commission is whether the employee erroneously received unemployment insurance benefits that he must repay.

There is no evidence of employer fault in the erroneous payment of the benefits. Instead, the overpayment was created by the commission's reversal of the appeal tribunal decision. The commission's reversal is due to a different legal conclusion based upon the same facts found by the ALJ, not due to departmental error.

The commission therefore further finds that waiver of the benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is modified, and, as modified, is reversed. Accordingly, the employee is ineligible for unemployment insurance benefits beginning in week 52 of 2004, and until four weeks have elapsed since the end of the week of quitting and until he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay $658.00 to the Unemployment Reserve Fund.

Dated and mailed April 15, 2005
kinkaja . urr : 150 : 1   VL 1007.01

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission accepts the facts found by the ALJ but reaches a different legal conclusion when applying the law to the facts.

Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.



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