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

LAURENCE A CYPRIAN, Employee

HONDO INC, Employer
c/o PERSONNEL PLANNERS

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05604927MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed October 6, 2005
cyprila . usd : 150 : 2  MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee should not be eligible for unemployment insurance benefits given the circumstances of the employment termination. In particular, the employee was mailed a letter notifying him that the employer considered him to have voluntarily terminated his employment with his recent absences. The employee had been absent from May 7th until the 16th due to incarceration.

"The commission has generally held that a separation resulting from a lengthy absence due to incarceration will be considered a discharge if the employee made a reasonably diligent effort to keep in touch with the employer during this absence and a quit if he did not." Graham v. Emmpak Foods Inc., UI Dec. Hearing No. 04610974MW (LIRC March 15, 2005).

In this case, on May 6, 2005, the employee notified the employer of his probation hold and incarceration. He explained that he would be absent at least the next two days, Saturday and Sunday. The employee's girlfriend next spoke with the employer's merchandize coordinator on Tuesday informing him that the employee was still incarcerated and she was uncertain of his future. Upon his release, the employee contacted the employer and was not allowed to return to work. The employee notified the employer as best he could regarding his status and, as such, the commission agrees with the appeal tribunal that it was the employer's conduct that severed the employment relationship, not the employee's.

Next, incarceration is not a valid reason for absence from work when the employee intentionally engaged in the criminal conduct leading to the incarceration, or the employee is otherwise responsible for the chain of events, which led to the arrest and/or incarceration. Graham v. Emmpak Foods Inc., UI Dec. Hearing No. 04610974MW (LIRC March 15, 2005). Yet, when there is no employee fault established in the incarceration, the commission finds that the discharge was not for misconduct connected with the employment. Ryan v. Agency Staffing, Inc., UI Dec. Hearing No.03202139WU (LIRC September 9, 2004).

In this case, the employee testified that while he did leave the scene of an automobile accident after being hit by another automobile, he did so only because that driver left the scene and he tried to catch up with her to exchange information and make sure she was not injured. After she drove away repeatedly, he went to a police station to file a police report. The record does not establish that the employee was convicted of any violations or that his decision to leave the scene of the accident constituted sufficient fault for the commission to find misconduct. For these reasons, the appeal tribunal decision is affirmed.

cc: Coca-Cola Bottling Company of Wisconsin, Milwaukee, WI


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uploaded 2005/10/10