TONIA L KURSCHINSKI, Employee

SUBWAY NO 15347, 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 makes the following:

The employee worked one year for the employer, a restaurant, and almost two years for the restaurant's previous owner. The employee's last position was as a part-time assistant manager. Her last day of work was May 8, 2006 (week 19).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee worked on May 8, 2006. On May 9, the employee was scheduled to work at 11:00 a.m. She had loaned her car to her boyfriend's mother who failed to return it on time. The employee did not report to work on May 9. The employee did not phone the employer or otherwise provide notice that she would not be reporting to work on May 9.

The only non-hearsay evidence regarding the circumstances of the separation is the employee's testimony that she understood from a conversation with her boyfriend, who worked with her at the restaurant, apparently in a non-management position, that the restaurant manager, the employee's sister, had told him on May 9 that the employee was fired.

At hearing, the employer did not offer the testimony of the employer's manager or owner, and the employee did not offer the testimony of her boyfriend.
The employee did not report to work on May 9 or thereafter, and had no contact with the employer after May 8.

A discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961); Wilson v. Reinke Service, UI Hearing No. 02600504MW (LIRC July 31, 2002). 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 fired. An employee owes a duty to definitely ascertain what her employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm. & Planasch, Case No. 116-225 (Dane Co. Cir. Ct., Jan. 5, 1966); Leo N. John v. DILHR & Julian Galst, et al., Case No. 134-448 (Dane Co. Cir. Ct., Feb. 23, 1973); Rupcic v. Wis. Liquor Co., Case No. 150-045 (Dane Co. Cit. Ct., Feb. 21, 1977); Arnold v. RD Roman, Inc., UI Hearing No. 980000732MD (LIRC Nov. 19, 1998); Wilson, supra.

The employee's efforts to verify her employment status were inadequate. Any doubt the employee may have had concerning her employment status could easily have been resolved by phoning the manager or owner, visiting the work site and consulting with upper management, or by showing up ready to work her next scheduled shift, and it was her duty to do so. See, Wilson, supra.; Arnold, supra; Boyd v. Kilbourn Care Center, UI Hearing No. 04601876MW (LIRC July 30, 2004). This is especially true here where the employee was an assistant manager and her sister was the manager. The employee's reliance on the second-hand representations of a non-management co-worker were unreasonable. See, Mindham v. ESA Services, Inc., UI Hearing No. 02403197AP (LIRC May 16, 2003)(unreasonable for employee to rely upon representation by non-management worker to conclude that she had been discharged).

The employee's actions in failing to report for work, or to contact the employer, on and after May 9, 2006, constituted conduct inconsistent with the continuation of the employment relationship, and the separation, as a result, was a quit.

The next question then is whether this quit satisfied any exception to the quit disqualification. There is simply no evidence in the record to support the application of any exception.

Finally, although the department adjudicator prepared the determination without certain information requested of the employer in a voice mail message, the evidence of record shows that the employer promptly responded to the message by phoning and leaving a message for the adjudicator to return the call but the adjudicator did not do so. As a result, the employer had good cause, within the meaning of Wis. Stat. § 108.04(13) for its failure to provide information to the department by the deadline imposed by the adjudicator.

The commission therefore concludes that, in week 19 of 2006, the employee quit her 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 finds that the employee was paid benefits in the amount of $2,550 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

The commission finds that the employer failed to provide correct and complete information requested by the department during a fact-finding investigation, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.04(13).

Dated and mailed September 29, 2006
kurscto . urr : 115 : 1  VL 1007.01  BR 319.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not conduct a credibility conference with the administrative law judge before reversing his decision, because the commission's reversal was based upon a different interpretation of the applicable law, not upon a different view of the facts.

 

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