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

ROBYN J LEE, Employee

RICE LAKE SAND & GRAVEL LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202247RL


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 supplier of sand, gravel, and concrete, for fifteen and a half years. The employee's job responsibilities included taking orders, dispatching, and similar tasks. Her last day of work was September 14, 2004 (week 38).

During the last month of the employee's employment the general manager expressed concerns about scheduling and overtime. On Friday, September 10, the general manager gave the employee instructions for a 7:00 a.m. Monday start time. However, the employee subsequently arranged for two workers to come in at 6:15 a.m. on Monday. The employee did so in order to accommodate the needs of a customer who wanted an early delivery.

When the employer's general manager arrived at work on Monday and discovered that the employee had scheduled workers at 6:15 a.m. he became very upset. The general manager handed his keys to the employee and told her he didn't see any reason for him to be employed when everything was done without his approval anyway. He then started taking his pictures off the wall and loading them into a box. By the general manager's own admission, he was making a scene, which ended only when the employee stated, "I'm out of here," grabbed her purse and lunch, and left.

Later that day the employee attempted to contact the general manager by telephone, but was unable to reach him. During the afternoon the employee stopped at the general manager's home to discuss the situation. The general manager told the employee he would contact her that evening. However, he did not do so.

The following day the employee reported for work as scheduled, but was told by the general manager that she was no longer employed. The employer later sent the employee a letter confirming that it was terminating her employment.

The question to decide is whether the employee quit or was discharged, and whether she is eligible for benefits based upon that separation.

The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119, 287 N.W.2d 763 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6, 126 N.W.2d 513 (1963).

The employer contended that the employee's statement "I'm out of here," combined with leaving the workplace in the middle of the workday and not returning, was inconsistent with a continuing employment relationship and evinced an intent to quit. The commission disagrees. The statement "I'm out of here" is ambiguous, and while under certain circumstances it could convey an intent to quit, it could also convey an intent simply to leave the premises. In this case, the employee did not turn in her keys or remove her personal belongings, nor did she make any other statement suggesting she intended to quit. While the employee did not return to the workplace that day, the fact that she made repeated attempts to contact the general manager to discuss the situation indicates she viewed the employment relationship as ongoing. Under all the circumstances, the commission believes that the employee's actions in saying "I'm out of here" and leaving the workplace reflected an intention to put some distance between herself and the general manager, who was extremely upset, but did not evince an intent to quit the employment.

The commission also notes that the evidence indicates the employer did not regard the employee's actions as a quitting. When the employee went to see the general manager after leaving work, he did not tell her he believed she had quit and stated he would contact her later. The following day the employee arrived ready to work, but was told that her employment was terminated. The employer subsequently issued a discharge letter which bears no indication it believed the employee had quit. These facts further suggest that the employer was the moving party in the separation.

Having concluded the employee was discharged, a secondary issue arises as to whether the discharge was for misconduct. The commission believes it was not. The employee had the authority to dispatch workers, and while she did not follow the general manager's instructions regarding employee start times on the day in question, the evidence indicates that she was attempting to act consistently with the employer's interests by accommodating an important customer. Finally, the employee's actions in walking out of work on her last day are understandable in light of the general manager's conduct, and do not warrant a finding of misconduct.

The commission therefore finds that in week 38 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 as of week 38 of 2004 provided she is otherwise qualified.

Dated and mailed May 24, 2005
leero . urr : 164 : 1  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge who conducted the hearing in order to obtain the benefit of his impressions of the demeanor of the witnesses. However, the administrative law judge indicated that he had little recollection of the witnesses and had no demeanor impressions to impart.

cc:
Attorney J. Drew Ryberg
Todd's Redi Mix Concrete, LLC
Attorney Victoria Seltun


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