STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

TONY C LEWIS, Employee

Involving the account of

JOHNSON CONTROLS BATTERY GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94606558MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 34 of 1994, the employe terminated his work with the employing unit and that his quitting was not within any of the exceptions in the statutes which would permit benefit payment. As a result, benefits were denied. The employe filed a timely appeal to an appeal tribunal. On October 27, 1994, the appeal tribunal issued a decision which modified and reversed the initial determination. Accordingly, benefits were allowed. The employer filed a timely petition for commission review of the adverse appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 15 years as a machine operator for the employer, a manufacturer of batteries. His last day of work was July 27, 1994 (week 31).

The employe had been having problems with drug use for approximately two years. This drug problem impacted upon his attendance. The employe received a one-day disciplinary layoff in April of 1992 because of his attendance. He also received a warning on August 13, 1993 because of his attendance. Thereafter, the employe received counseling regarding his unsatisfactory attendance in February of 1994.

In January of 1994 the employe took eleven days of vacation and had three absences. In February of 1994 the employe took five days of vacation and had four absences for illness. The employe was absent from March 17 through June 15, on a medical leave of absence. The employe presented doctor's slips excusing him for that period. The employe was to return from his medical leave of absence on June 16, but called in sick on June 16 and June 21 through the 23rd. The employe took vacation from June 24 through June 30.

The employe received a disciplinary layoff taken on July 6, 7, and 8 for his absences including his absence on June 21 through June 24. The employe returned to work after his disciplinary layoff and worked approximately two weeks. On July 28 and 29 the employe was a no-call/no-show. The employe was absent on August 1. The employe was placed on a medical leave of absence from August 2 through August 12, for substance abuse. The employe submitted documentation indicating that from July 28 through August 12 the employe was under doctor's care, specifically, from July 28 through August 1 for intoxication and from August 1 through August 12 due to in-patient admission for drug treatment.

The employe's in-patient treatment ended on Friday, August 12. The employe appeared for work on August 15, 1994 (week 34). At that time, the employer presented the employe with a last-chance agreement. That agreement provided that disciplinary action would be waived at that time, the employe would appear for work as scheduled -for the next six months, the employe would participate in the employer's Employe Assistant Program and that an addendum would be provided by a counselor highlighting what course of treatment the employe needed to follow. The employe refused to sign the agreement although he knew that doing so would mean the end of his employment. At the time the employe refused to sign the agreement, there were no medical restrictions on his ability to perform his work.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged by the employer. The secondary issue is whether the employe is eligible for benefits based on that separation of employment.

In this case; the employe's employment ended because he refused to sign a last-chance agreement. The employe was aware that his refusal would. lead to the end of the employment relationship. The commission has previously held that an employe who refuses to sign a last-chance agreement knowing that such refusal will terminate the employment relationship has voluntarily terminated his employment. The commission likewise holds in this case.. While the employer actually used the word discharge to the employe, it was the employe who had the last chance to act to preserve the employment relationship.

The commission determines that the employe's voluntary termination was not with good cause attributable to the employer nor for any other reason permitting immediate benefit payment. In the employe's eight and one-half months of employment with the employer in 1994, he had been gone approximately eight months. While the employe had been experiencing problems with substance abuse, at the time he was asked to sign the last-chance agreement his doctor indicated that he was able to control his drug use. Given the employe's extensive absenteeism in 1994, the employer was reasonable in requiring the employe to sign a last-chance agreement to insure his attendance at work. The employe had no medical reason for believing he would be unable to meet the employer's last-chance agreement. Neither the provision that the employe appear for work as scheduled nor the requirement that the employe continue in counseling was unreasonable given the employe's absenteeism from work in 1994 due to drug abuse. Of course, since the employe's doctor indicated the employe was able to work without restrictions and was able to control his drug use, the employe's quitting cannot be held to relate to any inability to perform his work duties.

The commission therefore finds that in week 34 of 1994, the employe voluntarily terminated his work with the employer pursuant to section 108.04 (7)(a), Stats., and not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $7,514.00 in weeks 1 through 9 of 1995 and weeks 34 through 53 of 1994 for which the employe was not eligible within the meaning of sec. 108.03 (1), Stats., and to which the employe was not entitled.

The commission further finds that waiver of benefit recovery is not required under sec. 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in sec. 108.04 (13)(f), Stats., the overpayment was not the result of a departmental error. See sec. 108.22 (8) (c)2., Stats. Rather, the overpayment resulted from the commission's reversal of the appeal tribunal decision.

DECISION

The decision of the appeal tribunal is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, the employe is ineligible for benefits beginning in week 34 of 1994 and until four weeks have elapsed since the end of the week of quitting and the employe 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. He is required to repay the sum of $7,514.00 to the Unemployment Reserve Fund.

Dated and mailed March 14, 1995
132 - 1035  VL 1007  VL 1014

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's decision is not based on a differing impression of witness credibility or demeanor but upon a different legal conclusion when applying the facts of this case to the law. While the administrative law judge indicated that the parties stipulated the employe was discharged, neither the department nor the commission is bound by stipulations of parties which do not conform to the facts of the case when applied to the unemployment compensation law. For these reasons, the commission finds that the employe voluntarily terminated his employment and not for any reason permitting immediate benefit payment.


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