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

SUSAN D SMITS, Employee

A & W RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06000925MD


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 about four months as a shift and store manager for the employer, a fast food restaurant.

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

The entity that owned the restaurant when the employee began working there engaged in an "assets only" sale to a new entity. The employees of the old employer were to be discharged and could reapply for jobs with the new owner. The new owner told a subordinate manager, the former district manager, to inform the managers that he was hosting a social get-together with them. The subordinate manager, who worked with the employee and was her immediate supervisor, did not inform the employee about the meeting. Consequently, when the employee did not appear at the social get-together, the new owner assumed that she was not interested in continuing her job with the restaurant. The subordinate manager later told the owner the employee had stopped showing up for work. The new owner decided that the employee had quit.

The employee was supposed to work on April 21, 2005, but was sick; she called the assistant manager and asked for a list of employee telephone numbers so that she could call to get a replacement for herself. The assistant manager was disrespectful to the employee and would not give the employee any worker telephone numbers. In response to this, the employee also left two messages on the former district manager's cell phone answering service, but got no response from him. She did not report to work. The next day, a crew member who was not a part of management, told the employee that she had been demoted and the assistant manager had taken her spot. The employee again called the former district manager and left messages asking why she had been demoted and asking whether or not she should report for work. He never responded. The employee telephoned the former owner, but he could not help her; he told her to turn her keys in. The former owner did not tell her that she could apply to be rehired. The employee assumed she had been discharged. The employee was never told that under the sales agreement she would be terminated and then interviewed to see if she would be rehired. Notice of the sale and its effect on current employees was posted at the restaurant by the new owner on April 25, 2005, four days after the employee's employment ended.

The employee knew the first name of the new owner; she did not attempt to learn his last name or to contact him. She did not contact corporate headquarters. The employee later went on a vacation in Idaho and while there, decided to stay there; she did not quit in order to move to Idaho.

The employer contended the employee quit. The commission disagrees.

In this case, the prior owner discharged the employee. The new employer indicated it intended to interview and rehire workers of the former employer. This was never communicated to the employee. Even if the employer had communicated this to the employee, this does not mean that the employee quit. She had already been discharged by the prior owner. She was never guaranteed a position with the new owner, the most she had was an opportunity to apply for work with the new employer. When she contacted the prior owner to clarify her status, she was told to turn in her keys. The employee did not quit her job. Rather, she was discharged by the employer.

The employer never suggested that the employee was discharged for misconduct. In fact, the new owner did not discharge the employee. This had already been done by the former employer.

The commission therefore finds that in week 17 of 2005, the employee was discharged by the employer, but that her discharge was not for misconduct connected with her work, 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 beginning in week 17 of 2005, if otherwise qualified.

Dated and mailed June 16, 2006
smitssu . urr : 145 : 4 VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a different impression of witness credibility. Rather, the commission reversed the appeal tribunal decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2006/06/20