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

PATRICIA A PHILLIPS, Employee

PRO ONE JANITORIAL FOND DU LAC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001425FL


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 seven weeks as a custodian for the employer, a janitorial company. Her first day of work was January 9, 2006 (week 2) and her last day of work was on March 3, 2006 (week 9).

On March 6, 2006 (week 10), the owner telephoned the employee and told her that if she was not happy she might as well quit. The employee said, "OK."

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 employee explained that the employer told her they "wouldn't be using me anymore" and that she thought she was discharged. 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 she is being fired. An employee owes a duty to definitely ascertain what her employment status is before concluding that the emloyment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Dane County Circuit Court, Case No. 116-225, January 5, 1966, and Rupcic v. Wis. Liquor Co., Inc. & DILHR, Dane County Circuit Court, Case No. 150-045, February 21, 1977. Under the circumstances, the employer had a right to rely on her statement, and she is now bound by the declaration that she intended to quit.

The statutes provide that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at lest four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception.

Wis. Stat. § 108.04(7)(e) provides an exception to the quit disqualification if the employee accepted work which could have been refused with good cause under Wis. Stat. § § 108.04(8) or (9), and then terminated such employment with the same good cause within the first ten weeks after starting work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

In her work for the employer, the employee worked 28 hours per week on second shift. Based on information in a Certified Expert's Report on Labor Market Conditions provided by Wisconsin's Conditions of Employment Database (COED), the hours, including arrangement and number are substantially less favorable that those prevailing for similar work in the locality. Only 20 percent of similar work consists of 28 hours of work on second shift. Therefore, the employee quit her job with the same good cause she might have refused in within the first 10 weeks of her employment.

The commission therefore finds that the employee accepted work in week 2 of 2006, that could have been refused with good cause, and that the employee voluntarily terminated that employment in week 10 of 2006, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2006, if otherwise qualified.

Dated and mailed August 16, 2006
phillpa . urr : 178 : 1   VL 1007.01  VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not reverse based on any differing assessment of witness credibility. It reaches a different legal result when applying the law to the facts as found by the ALJ.


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uploaded 2006/08/22