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

SHERRY L CHEVALIER, Employee

STAFF FORCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608975RC


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. On January 20, 2005, the commission ordered the taking of additional evidence pursuant to Wis. Stat. § 108.09(6)(d). Pursuant to that order, an administrative law judge conducted a hearing on April 11, 2005 on behalf the commission. Following the hearing, the matter was returned to the commission and it is now ready for disposition.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ both at the original hearing and the April 11, 2005 hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for six months as a third shift general laborer earning $8/hour for the employer, a staffing agency. On August 13, 2004, the employer informed the employee that her assignment would be ending. At the same time, the employer informed the employee of a client assignment in Whitewater, Wisconsin and asked the employee if she wished to submit a resume for possible interview by the client. Due to a misunderstanding, the resume was not submitted. The employee's last day of work at the client business was Thursday, August 19, 2004 (week 34).

On Friday, August 20, 2004 (week 34), when the employee stopped at the employer's business to pick up her paycheck, the Whitewater opportunity was again discussed and the employee asked the employer to submit her resume for possible interview.

On Tuesday, August 24, 2004 (week 35), the employer offered the employee a shipping and receiving assignment paying $8.50 an hour to start on Monday, August 30, 2004 (week 36). The position involved inventory and scanning work at a plant business in Avalon, Wisconsin.

The employee declined the assignment on Friday, August 27, 2004 (week 35), in part due to travel distance. The client is located 34.68 miles from the employee's residence. A certified report, generated by the Wisconsin Conditions of Employment Database (COED), indicates that for positions paying $8.50 an hour, workers customarily travel 10 miles.

Also, on August 27, 2004 (week 35), the employer notified the employee of an opportunity at a hotel and Bible camp. On September 14, 2004, the department issued a determination finding that this contact in week 35 of 2004 was a refusal of work but that the hours were substantially less favorable than similar types of work and therefore benefits were allowed. This determination, identification number 040650444, was never appealed and became final on September 28, 2004.

On August 27, 2004 (week 35), the employer considered the employee to have quit her employment and ceased looking for assignments for her. The employee initiated a claim for unemployment insurance benefits.

The issue to be decided is whether the employee quit or was discharged and, based upon the nature of the separation, whether she is eligible for the immediate payment of benefits.

The employer contended that the employee voluntarily terminated her employment and should not be eligible for unemployment insurance benefits. The commission disagrees. While the employee never told the employer that she was quitting, a key element to determining whether an employee voluntarily quit is the employee's intent and the courts have consistently held that an employee can show intent by actions that are inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d 1, 6 (1963). Yet, in Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004), the commission explained that:

Not every refusal of a work assignment constitutes a voluntary termination on the part of the employee. . . The nature of the relationship between a temporary help agency and an employee contemplates that assignments will be offered at a variety of locations. The employee's failure to accept one specific assignment at one particular location does not in and of itself reflect an intent on the part of the employee to voluntarily terminate his employment.

In this case, the employee's refusal of the plant assignment due to the travel distance, which was greatly beyond the normal commuting distance for the offered rate of pay, was not a quitting. She did not ask to have her name removed from future consideration for assignments and had no reason to believe the refusal would result in the employer's decision not to consider her for work in the future. Instead, it was the employer's decision to end the employment relationship by ceasing to look for work for her. This constituted a discharge.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits. 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).

The employee's refusal of the assignment almost 35 miles from her residence did not evince a willful or intentional disregard of the employer's interests. Additionally, no other evidence was presented to establish misconduct.

The commission therefore finds that the employee did not voluntarily terminate her 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 decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2004, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 31, 2005
chevash . urr : 150 :   MC 626  VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: Even though the employer did not object to the COED report when originally given the opportunity by the ALJ, the employer petitioned the appeal tribunal decision arguing, in part, that the COED report listed the incorrect rate of pay for the Avalon position. The remand for additional testimony was to correct this and the commission has based its decision upon evidence from both the original and the remand hearing.

 

cc: CMP, Inc.


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