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

HARRY S MCCLAIN, Employee

ROBERT PEEPLE & ASSOCIATES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600969MW


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 ineligible for benefits beginning in week 48 of 2005 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,030 to the Unemployment Reserve Fund.

Dated and mailed April 28, 2006
mcclaha . usd : 115 : 8 MC 626  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked 1.5 years as a security officer for the employer, a real estate management company.

The employee worked second shift and security officer Larry Williams worked first shift. They would generally interact with each other during shift change. Williams was the employee's peer, not his superior. Both the employee and Williams reported directly to the owner.

Prior to November 20, 2005, the employer's owner received reports from tenants of the apartment complex to which the employee was assigned to the effect that the employee had been observed drinking and doing drugs with tenants, and touching a 14-year-old inappropriately. The owner had scheduled three or four meetings with the employee to discuss these allegations, but the employee failed to attend these meetings.

As a result, the owner asked Williams to notify the employee at shift change on November 20, 2005, that he was not to work again until he spoke to the owner, and to turn in his keys, gate card, and uniform. Williams did so. Williams also told the employee of the tenant allegations.

The employee phoned the owner on November 21, 2005. The owner told the employee he could not talk to him right then, because he was very busy. The employee collected his paycheck on November 21, 2005, his regular payday. The employee did not contact the employer thereafter, and filed a claim for benefits on December 23, 2005.

The first question is whether the separation was a quit or a discharge. Ordinarily, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002). Furthermore, the courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employee to the effect that he is fired. An employee owes a duty to definitely ascertain what his employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cit. Ct., Feb. 21, 1977); Arnold v. RD Roman, Inc., UI Hearing No. 980000732MD (LIRC Nov. 19, 1998); Wilson, supra.; Mindham v. ESA Services, Inc., UI Hearing No. 02403197AP (LIRC May 16, 2003).

Here, the employee had been aware for some time that the employer had wanted to discuss allegations of unsatisfactory performance/inappropriate conduct with him, but had failed to participate in scheduled meetings. He was also aware, on November 20, 2005, that he would not be permitted to return to work until he discussed these allegations with the employer. However, despite this, his only contact with the employer after November 20 was a brief call to the owner during which he was told that the owner was too busy to talk to him right then.

The employee had a responsibility under these circumstances to make additional efforts to contact the employer to discuss his employment status, and his failure to do so renders the separation a quit.

The employee argues that Williams' directive that he turn in his keys, gate card, and uniform led him to believe on November 20 that he had been discharged. First of all, the employee would not have been reasonably justified in concluding that Williams, a peer, had the authority to discharge him. See, Mindham, supra; Villarreal v. Land O' Lakes, Inc., UI Hearing No. 03007822MD (LIRC March 31, 2004). More importantly, the commission has not interpreted a demand that an employee turn in his keys as a discharge if the employer intended something different and communicated this to the employee. Livingston v. L & D Trading Post, Inc., UI Hearing No. 02200117EC (LIRC June 13, 2002); Koenings v. Commercial Weather Proofing Services Inc., UI Hearing No. 03004661WK (LIRC March 5, 2004); Valentine v. Currie Park Service Center, UI Hearing No. 01611974MW (LIRC Jan. 30, 2003). Williams' statements to the employee reasonably conveyed the message that he would not be allowed to return to work until the owner had an opportunity to discuss with him certain serious allegations, which the employee had so far avoided discussing, and that his keys, gate card, and uniform would be kept by the employer at least until this discussion could be conducted and the allegations reviewed with him. The request that he turn in his keys, uniform, and gate card should not reasonably have been interpreted by the employee as a discharge.

There is no exception to the quit disqualification which would apply here.

cc:
Attorney Edward David



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