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

REGINALD D JOPEK, Employee

VALVOLINE INSTANT OIL CHANGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602498MW


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 about ten months as an assistant manager for the employer, an oil change shop. His last day of work was February 22, 2005 (week 9).

On February 22, 2005, the employee was arrested at work by police and incarcerated for two weeks before being released on bail. When the employee was arrested, the employer was provided with information that indicated that the employee might be incarcerated for a long period of time. Consequently, the employer discharged him that same day, on February 22, 2005 (week 9).

The first issue to be decided is whether the employee severed his employment by actions that evinced a quitting or whether he was discharged and, ultimately, whether he is eligible for unemployment insurance benefits.

While the employee was arrested at work on February 22, 2005, the record does not reflect any action on the employee's behalf evincing an intent to sever the employment relationship. Instead, it was the employer's decision to terminate the employment based on its belief that the employee would be absent for a substantial period of time.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment. Misconduct connected with the 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 v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The record does not reflect any connection between the employee's arrest and his employment. While there was likelihood as of the day of the arrest, that the employee was going to be absent for a substantial period of time, the employer proactively decided to discharge him before that absenteeism occurred. The subsequent dates of incarceration cannot be used as absences from work as the employment no longer existed.

The commission therefore finds that in week 9 of 2005, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a) but was discharged and not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits in week 9 of 2005, if otherwise qualified. The commission remands for investigation of the issue of the employee's ability and availability for work as of week 9 of 2005.

Dated and mailed June 28, 2005
jopekre . urr : 150 : 1   MC 605.091

/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 prior to reversing the decision because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing legal conclusion when applying the facts as found by the administrative law judge.

 


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