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

DERRICK L ARMSTRONG, Employee

CORNWELL PERSONNEL ASSOC LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605885MW


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 three months for a client of the employer, a temporary help agency. His last day of work was June 13, 2005 (week 25).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether his quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether his discharge was for misconduct connected with his employment.

On June 13, 2004, the employee reported to the client's job site, only to be informed that no work was available for him. The employee phoned the employer and was informed that the assignment had ended but that he could work later that week for the same client at a different location. When the employee phoned the next day he was informed that the client had no positions at the other locations. The employer called the employee on June 14 and offered him work at a client on the second shift but the position was to last only one day. While the employer's branch manager testified the work would have been a ten-hour shift at $8.25 per hour, neither the employee, the generalist who offered the work to the employee or the employer's computer record indicates that the employee was informed what he would be paid had he accepted this position. The employee did not accept this assignment because it was only for one day. The next day the employer offered the employee a position in Hartland. This was a position as a hand-packager/bindery helper paying $8.10 per hour, forty hours per week. The employer had all shifts available and the employer provided van transportation for all three shifts that cost $3.75 each way. The employee did not accept the position because he had no transportation. The location was important to the employee because he did not have transportation and could not accept assignments that he could not reach by public transportation. The employee was not told that the employer had a van that would take him to Hartland. The employee did not intend to quit his job with the employer but merely believed he was unable to reach the Hartland position because he did not have access to transportation.

It was the employee's position that he did not quit his job with the employer. The commission agrees. The employee was willing to work for the employer. The employee had been working on an assignment that was cancelled. The employee was then offered, and accepted, a position at another location but this position did not materialize. The employee was then offered a one-day position on short notice. Finally, he was offered an out of town position, which he reasonably believed he was not able to accept because he lacked transportation. While the employer had transportation available, the employer did not inform the employee that he had this option. Therefore the employee was willing to work for the employer and did not intend to quit his job.

Not every refusal of a work assignment constitutes a voluntary termination on the part of the employee, this is so despite the employer's policy to the contrary. The employee did not intend to sever his employment with the employer but merely declined two assignments, one because of its location and one because it was only to last one day. 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 failure 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. Likewise, the fact that the employer could not immediately offer the employee another assignment, after the employee refused the first offer of ongoing work, did not translate into a discharge. Rather the commission concludes that the correct issue is whether the employee failed to perform available work under Wis. Stat. § 108.04(1)(a). The commission remands for a determination by the department on that issue because the record does not specify the employee's potential earnings for the second assignment at CCI in Hartland. Further, this issue was not noticed for hearing.

The commission therefore finds that in week 25 of 2005, the employee did not voluntarily terminate his work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 25 of 2005, the employee was not discharged by the employing unit, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified. This matter is remanded to the department for a determination on whether the employee had due notice of work available in week 25 of 2005 under Wis. Stat. § 108.04(1)(a).

Dated and mailed February 28, 2006
armstde . urr : 145 : 1 VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission modified the ALJ's decision to reflect its determination that the employee was offered two assignments, but that he did not quit when he was unable to accept those two assignments.

The employer, in its petition for commission review, argued that the employee was in fact offered work, at Beck Carton. The employee agreed but testified that he was told this work would only last one day. The employer further offered the employee a position at CCI in Hartland. The commission agrees with the employer's assertion that it offered these two jobs to the employee and that he refused them. The commission has modified the appeal tribunal decision to reflect this.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/03/03