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

RAYMOND L JOHNSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06601927MW


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 in one assignment for the employer, a temporary employment agency, for two years. This was a second shift assignment for Milwaukee Electric Tool testing experimental power tool prototypes.

The employment relationship ended in October of 2005. The issues are when this separation occurred, whether it was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

On October 10, 2005, the employer attempted to reach the employee, but was told by the person who answered the phone at his residence that the employee had been arrested. The employer told this person to have the employee contact the employer to advise when he would again be available for work.

On October 11, 2005, the employer left a message for the employee to the effect that his assignment with Milwaukee Electric Tool had ended, he should not report to work at Milwaukee Electric Tool again, and he should contact the employer when he "was free."

The employee did not contact the employer until October 21, 2005, when he left a voicemail message requesting that certain information be provided to his caseworkers as part of his application for food stamps. On October 31, the employee contacted the employer by phone and requested an opportunity to review copies of the information provided to the caseworkers. On November 1, the employee appeared in person at the employer's offices asking why the information provided to the caseworkers did not indicate he had been fired and stating he was available for work.

The employee was released from jail no later than October 24, 2005.

The employee testified that he contacted the employer between October 11 and November 1, 2005, to ask whether the employer had an assignment for him, but was told there was not.

The commission does not credit this testimony. There were numerous inconsistencies in the employee's testimony. For example, he first testified that there were no charges pending against him in Milwaukee County at the time of the hearing, and then changed this testimony to admit that the charges for which he had been arrested on October 10 were still pending. As a further example, the employee first testified that he was not in jail immediately prior to his October 24 bail hearing and, in fact, remembered driving his car to that hearing, and then changed this testimony to indicate that he didn't know whether he was in jail at that time.

Moreover, the employer's log of contacts with the employee, which it successfully established were exhaustive and could not be modified after created, reflects only the contacts set forth in the above findings.

The commission notes that, in the evidence it offered, the employer does not represent that it communicated to the employee on October 10 and 11, consistent with its policy (Exhibit #5) that it was his responsibility to contact the employer immediately to obtain another assignment, but instead that it told the employee it was his responsibility to contact the employer once his period of incarceration had ended.

The record supports a conclusion, therefore, that the employee had reason to be aware, through communications from the employer, that it was his responsibility to contact the employer to request another assignment once he was again available for work and that it was reasonable for him to conclude, as a result, that the employment relationship would continue until his period of incarceration had ended. The employee was available for another assignment no later than Tuesday, October 25, but did not request another assignment until Tuesday, November 1.

As a result, the employment relationship continued through October 24. However, the employment relationship terminated during the week ending October 28, when the employee quit by not promptly contacting the employer after the end of his period of incarceration and requesting another assignment as he had been effectively instructed to do in the messages directed to him from the employer on October 10 and 11.

Another issue noticed in this matter is whether the employee was able and available for work during the relevant time period.

The employee's testimony that he was continuously available for work from October 10 through October 24 is not credible. The employee admits that, although he was released on October 11 in regard to the charge for which he was arrested on October 10, he was "re-arrested" on an outstanding warrant for driving with a suspended license. The employee, who has the burden of proof in regard to the able and available issue, does not deny either the existence of the outstanding warrant or the fact that he was driving with a suspended license. The employee admits that bail was set for him on October 15 at $2,500 which he was unable to post, a hearing was conducted on October 24 and bail set for him at $1,000 at that time, and he posted this amount and was released as a result. The most plausible scenario, given the evidence of record, is that, after his arrest on October 10, it was discovered that there was an outstanding warrant for the employee's arrest, bail was set which the employee was unable to satisfy and, as a result, he was incarcerated until bail was reduced and posted on October 24. The record supports a conclusion that the employee was not available for work due to circumstances for which he was responsible from October 10 through October 24, 2005. See, Schweikert v. Ganton Technologies, Inc., UI Hearing No. 91-606281 (LIRC March 24, 1992); Haack v. LIRC and Polyone Corp., Case No. 01-CV-3535 (Wis. Cir. Ct. Dane Co., Dec. 10, 2002).

The commission therefore finds that, beginning in week 42 and ending in week 44 of 2005, the employee was not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.

The commission concludes that, in week 44 of 2005, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $4,966 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that waiver of this overpayment is not required under Wis. Stat. § 108.22(8)(c ), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 and ending in week 44 of 2005, because he was unavailable for work from October 10 through October 24, 2005. The employee is ineligible for benefits beginning in week 44 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 $4,966 to the Unemployment Reserve Fund.

Dated and mailed August 16, 2006
johnsra . urr : 115 : 4  VL 1025  AA 220

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did confer with the administrative law judge before reversing his decision. The administrative law judge indicated that the employee was generally not a credible witness and, in reviewing the hearing record again, believed that the employee's testimony that he had contacted the employer several times between October 11 and November 1 to inquire about available work was problematical.


Appealed to Circuit Court.

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uploaded 2006/08/22