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


ALAN M GREUEL, Employe

JIM GREELEY SIGNS & AWNINGS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001074DV



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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about five weeks as a laborer for the employer, a sign manufacturing business. On or about February 5, 1998, the employe learned that the employer's health insurance did not cover his family but was just individual insurance. He approached the owner about the matter and was told that the insurance did only cover the employe. The employe asked to be laid off so that he could look for another job and still remain eligible for unemployment. The employer agreed, although it indicated he could remain while he found another job. The employe indicated he needed time to find work. It was agreed at that time that his last day would be February 6, 1998 (week 6). On the following Monday, he called in and asked what would happen if he came to work. He was told that he would have to start over with a new probationary period. He declined to reinstate the employment relationship.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged. The second issue is whether he is eligible for benefits based on the separation from employment. The employer contended that the employe never asked to be laid off but merely said he was quitting. The ALJ accepted the employe's testimony. After reviewing the record, the commission agrees with that credibility assessment.

The commission has held that if an employer agrees to lay an employe off, at the employe's request, the employe is discharged. See Miller v. ABCO Building Corp., UC Hearing No. 97-607240 (LIRC Feb. 5, 1998); Daniel Jandourek v. Rogers Electric, UC Hearing No. 97401954 (LIRC Dec. 5, 1997). The rationale is that it is ultimately the employer's choice whether to lay the employe off or not. Here, the employer agreed to lay the employe off. The employe was therefore discharged. The employer had the right to decline to lay the employe off thus leaving it to the employe whether to sever the employment relationship. A mere request to be laid off, however, does not constitute a severing of the employment relationship because it depends on the employer's acquiescence. The employer did not present any evidence to establish that the employe's discharge was for misconduct connected with his work. The commission therefore finds that in week 6 of 1998, the employe was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 6 of 1998, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: June 12, 1998
greueal.urr : 132 : 1 MC 626

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's reversal of the administrative law judge's decision is not due to a differing assessment of witness credibility. The commission has reached a different legal conclusion when applying the law to the facts.


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