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


ROBERT E MATESKE, Employe

ADECCO EMPLOYMENT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001368MD


On March 5, 1998, the Department of Workforce Development issued an initial determination which held that the employe did not voluntarily terminate his employment. The employer filed a timely request for hearing, and hearing was held on April 13, 1998 in Madison, Wisconsin before a department administrative law judge. On April 16, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe timely filed a petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case continues to work as a temporary employe for the employer, a temporary help agency. His most recent assignment began on March 30, 1998, and had continued through the time of the hearing. At issue is the nature of the cessation of the employe's previous assignment, which ended on January 30. The commission concludes that this cessation was not a quit of employment by the employe, and so reverses the appeal tribunal decision.

Sometime in late January of 1998, the client to whom the employe was assigned notified the employe that his position was ending because the client had hired someone to fill it permanently. At that time the client offered the employe another position, which involved extensive telephone work. The employe declined this position because he has a partial hearing loss and telephone work can be difficult for him. The employe subsequently telephoned the employer and asked for a new assignment. In the succeeding days, the employer offered the employe an unknown number of assignments, all involving telephone work which the employe declined, again because of his partial hearing loss. The employer kept the employe in "active status" and, as mentioned above, the employe accepted an assignment from the employer beginning March 30, 1998. Finally, the employer's rules allow employes the choice of refusing assignments.

A quit for unemployment insurance purposes includes conduct inconsistent with an intent to continue the employment relationship. The employe cannot be said to have engaged in such conduct in this case, however, because he had valid reasons for refusing the offer of work from the client and the interim assignments from the employer. The commission therefore finds that, in week 5 of 1998, the employe did not voluntarily terminate his employment, within the meaning of Wis. Stat. § 108.04 (7)(a). Indeed, based upon the record, there appears to be no separation issue at all. The employe continues to work for the employer and, from both parties' testimonies, it is clear that neither party considered the employment relationship to have ended.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified.

Dated and mailed: July 15, 1998
matesro.urr : 105 : 1 VL 1007.01 VL 1035

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The basis for the administrative law judge's conclusion of quit was hearsay evidence by the employer's branch manager to the effect that the employe had asked to be removed from the assignment with the client which ended on January 30, 1998. There was no other evidence in support of this contention, however; pursuant to Wis. Admin. Code § DWD 140.16 (1), no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under the rules of evidence. The evidence in question is not.

cc: ADECCO EMPLOYMENT SERVICES


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