KAREN L MISKIMEN, Employee
WISCONSIN APARTMENT ASSN, Employer
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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2006, if otherwise qualified.
Dated and mailed August 31, 2006
miskika . usd : 150 : 1 VL 1007.20
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The employer petitioned the appeal tribunal decision allowing unemployment insurance benefits to the employee. The employer contended that it kept the employee apprised of the hiring of her replacement and that it was the employee's actions which severed the employment. The employer also contended that it took four months to fill the employee's position and that was ample time for the employee to secure new employment. The commission has carefully reviewed the record in this matter. In an effort to provide the employer with sufficient time to replace the employee, the employee notified the employer of her desire to seek other employment. She did not perfect the quitting by giving notice of the effective date of her quitting as it was contingent upon securing employment, which she had not yet done. See Volden v. Linen Center, UI Dec. Hearing No. 02007461LX (LIRC May 28, 2003). While the employee was aware of the steps that the employer was taking to hire a replacement, once the decision had been made and the employee had not yet secured new employment, it was the employer's decision to end the employment. The ALJ characterization as a discharge is consistent with past commission analysis; in particular, in Marino v. Fond du Lac Association of Commerce, Hearing No. 03000733FL (LIRC September 25, 2003), the commission stated:
If the employee only indicated an intent to quit when and if she found other employment, and the employer unilaterally determined an effective date for the separation, this would be a discharge, not a quit. Volden v. Linen Center, UI Hearing No. 02007461LX (LIRC May 28, 2003); Munroe v. Goodwill Industries of North Central Wisconsin, UI Hearing No. 02403107AP (LIRC Jan. 31, 2003).
Finally, the employee's situation is distinguishable from Glisczinski v. Crossroads Mental Health Services, Inc., UI Dec. Hearing No. 04000106WR (LIRC August 4, 2004), in which the commission characterized the separation as a discharge where, after the worker initially give vague notice of quitting to find employment, the employer pressed the worker to provide a date certain to end the employment and the worker did so without any indication that she wished to rescind her notice.
For these reasons, the appeal tribunal decision is affirmed.
cc:
Brian Cadwell
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uploaded 2006/09/05