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

BRENDA L BLASZCZYK, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05604282MW


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 three months for a temporary employment service. Her last day of work was April 13, 2005 (week 16).

The employee was placed in an on-going assignment on April 13, 2005. She left early that day after she reported that she threw up. The client contacted the employer and asked that she not return. The employer told the employee not to return to the client and offered her a third shift assignment to start that day or a first shift assignment to begin the next day. The employee refused the assignments. The employer told the employee she should look for work with another agency. When the employee contacted the employer again a few days later, she was told that she had not performed well in her assignments and she should seek work from another temporary help agency.

The issue to be decided is whether the employee quit or was discharged.

The employer argues that the employee quit when she refused to accept another assignment. Not every work refusal in the context of temporary help agency employment constitutes a quitting even if the employer has a policy to treat it as such. "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 failures 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." Polk v. Cornwell Personnel Associates Ltd, UI Dec. Hearing No. 04602403MW (LIRC Jul. 20, 2004); Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004); Narlock v. Cornwell Personnel Associates Ltd, UI Dec. Hearing No. 04603511MW (LIRC Mar 8, 2005).

Since one assignment was to begin within hours, the employee did not receive due notice of it and she was not unreasonable to refuse the assignment. The employee refused one other assignment. The commission does not infer a quitting from one job refusal. However, the employer then directed the employee on two occasions to seek work with another employer and offered her no other assignments. The commission concludes from this that the employer ended the employment relationship. The employer did not establish that the employee was discharged for misconduct.

The commission therefore finds that in week 16 of 2005, the employee was discharged and that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.05.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2005, if she is otherwise qualified.

Dated and mailed October 28, 2005
blaszbr . urr : 178 : 1    VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not consult with the ALJ about credibility before deciding to reverse. The commission accepts that the employer offered the employee assignments which she did not accept. However, it places the actual severance of the employment relationship at the point where the employer told the employee to seek work with another agency and offered her no further work.



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uploaded 2005/10/31