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

MARSHA A GOODWIN, Employee

QTI PROFESSIONAL STAFFING OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06602386RC


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 about six months as a packer/assembler for the employer, a temporary employment service. Her last day of work was February 28, 2006 (week 9).

On the employee's last day of work, she was directed by the client's team leader to clean certain portions of a line after the line had stopped. When she refused, the client's team leader sought assistance from the client's supervisor. The employee informed the client's supervisor that she would not clean the line because she did not want to get greasy. She was asked a couple of times by the client's supervisor to clean the line and she indicated she would not clean it. The client's supervisor then directed the employee to leave the premises. When the employee asked if she could return to work at the client business, she was told that she could not.

The employee left the client's worksite and reported to the employer's business. She spoke with a staffing worker about the situation at the client business and was directed to leave while the worker attempted to resolve the matter. Thereafter, the employee kept in contact with the employer on a weekly basis to determine if work was available for her. The employee was not provided with another work assignment. Departmental records reflect that the employee initiated a claim for unemployment insurance benefits.

The issue before the commission is whether the employee quit or was discharged and, ultimately, her eligibility for unemployment insurance benefits.

The employer argued that the employee voluntarily terminated her employment by failing to perform work as directed by the client and by leaving the client assignment. The employee denied quitting, contending that she attempted to maintain her employment relationship with the employer, the temporary employment service and kept in contact with it in hopes of placement on future work assignments. The employer's contention cannot be sustained. Even in the temporary employment arena, the employer still has the burden of establishing that the employee's actions were so inconsistent with the continuation of the employment relationship as to evince a voluntary termination of it. See Lor v. Simply Staffing Inc., UI Dec. Hearing No. 06200900EC (LIRC June 20, 2006) citing Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980) and Tate v. Industrial Commission, 23 Wis. 2d 1, 6 (1963).

In this case, the employer failed to establish that the employee understood that her actions at the client business constituted a quitting from the employer. In fact, after leaving the client business, the employee actively sought to maintain the employment relationship with the employer. Under these circumstances, the employee's actions were not so inconsistent with the continuation of the employment relationship as to evince a quitting. Instead, it was the employer's decision to end the employment by failing to schedule the employee for work.

Wis. Stat. § 108.04(5) denies unemployment insurance benefits to a worker who has been discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that his or her performance is not satisfactory and give him or her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979).

In this case, the employee refused to perform a cleaning task for the client, arguing that she would get "greasy" and it was a task that maintenance performed. When she discussed the situation with the employer immediately following it, her refusal was not cited as any ban to continued work with the employer if it had work available for her. There is also no evidence of prior warning for similar behavior. Under these circumstances, the commission treats the employee's conduct as an isolated incident of poor judgment regarding her duties at the client, not misconduct.

The commission therefore finds that in week 9 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified, is reversed. The employee's eligible for benefits, if otherwise qualified.

Dated and mailed July 26, 2006
goodwma . urr : 150 : 8  VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission has reversed the appeal tribunal decision because it reached a different legal conclusion regarding the nature of the separation, based upon essentially the same facts as found by the ALJ and the employee's undisputed testimony regarding her contact with the employer's staff immediately after being sent from the client.


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