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

KATHLEEN VANDEN BERG, Employee

TRINITY RESOURCE CORP., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95605562MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 16 weeks for the employer, an employment agency. Her last day of work was May 5, 1995 (week 18).

The employer contracts with clients to supply workers. Under the employer's arrangement with its clients, if the client hires the employer's worker before the end of a 16 week period, the client owes the employer damages. At the end of 16 weeks, the client is free to hire the worker.

At the time of hire, the employe was informed that she would be working for the employer's client for 16 weeks and was advised that the client would consider hiring her directly after the 16 week period, if her services were satisfactory. She completed the terms of her 16 week assignment and on May 1 was notified that the client would be hiring her for a permanent position. That position paid the same wage rate and offered the same number of hours per week. The employe last worked for the employer on May 5, 1995 (week 18), and began her employment with the employer's client on May 8, 1995.

The initial issue to be decided is whether the employe voluntarily terminated her employment with the employer or was discharged. The secondary issue is whether the employe is eligible for benefits based on the separation from employment.

The commission finds that the employe terminated her work with the employer. The employer did not hire the employe for a fixed term. Rather, the employer informed the employe that its contract with a particular client permitted the client to hire the employe without penalty after 16 weeks. The employer was willing to continue the employe's employment if she had not in fact been hired by the client. Accordingly, it was the employe's decision to sever the employment relationship and accept the client's offer of work.

The employe terminated her employment with the employer to accept other work offering weekly wages equal to those earned with the employer, the same number of hours as those performed for the employer, and offering the opportunity for significantly longer-term work. The employe's reason for separation does not allow the immediate payment of unemployment benefits. Rather, the employe must requalify for benefits by earning four times her weekly benefit rate since the week of quitting.

The commission therefore finds that in week 18 of 1995, the employe was not discharged by the employer, within the meaning of sec. 108.04 (5), Stats.

The commission further finds that in week 18 of 1995, the employe voluntarily terminated her employment with the employer, in order to accept employment or other work, covered under state of federal unemployment compensation law, which offered an average weekly wage at least equal to that earned in work for the employer, which offered the same or greater number of hours of work, and which offered an opportunity for significantly longer-term of work, within the meaning of sec. 108.04 (7)(L), Stats., and that as of week 35 of 1995, the employe has earned wages in that subsequent employment equal to at least four time the employe's weekly benefit rate.

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 35 of 1995, if she is otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin Unemployment Compensation Law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed December 26, 1995
bergka . urr : 132 : 0   VL 1025

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has not disturbed any credibility determination made by the administrative law judge but reaches a different legal conclusion when applying the law to the facts.


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