TARA L MC KINLEY-DUART, Employee

SUNDARA SPA LLC, 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 and three-quarter year as a general manager for the employer, a wellness spa. Her last day of work was April 25, 2006 (week 17).

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 was unhappy working for the employer because she did not like one of the owner's management style. On March 27, 2006, the two owners and the employee met. The employee admitted she was unhappy with the female owner's management style, that in order for her to stay the female owner would have to change her management style and that she did not think that would happen and that she was thinking about leaving the hospitality industry in general. The employee stated she had been looking for other work; she also told the owners they were going to have to find a replacement for her. The meeting ended with the employee agreeing to resign at some point in the future when she found other work and to give the employer at least two weeks advance notice. No specific date was set; the employee was willing to continue working as long as it took her to find other work. On April 10, 2006, the employee was asked to write a resignation letter; she asked the owner what date the owner wanted her to resign. On April 17, 2006, the employee was told to draft a resignation letter with an open resignation date but the employee did not do that. On April 18, 2006, the owners told the employee her last day of work would be April 25, 2006, and the employee put that into a letter. The employee was paid a $4,000.00 bonus for 2005 when she left.

The commission's position in cases such as this is set forth in Miskimen v. Wisconsin Apartment Assn., (LIRC Aug. 31, 2006):

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.

It was the employee's testimony that she did not indicate a last day of work. The employer unilaterally decided on the termination date. The employer simply declared to her that April 25 would be her last day of work. The employer unilaterally set the termination date, irrespective of whether the employee protested or indicated she did not want to quit. In the Glisczinski case the employer pressed the employee to choose a termination date and the employee actually did so. That is not the situation in this case.

The commission therefore finds that in week 17 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that in week 17 of 2006, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2006, if she is otherwise qualified. The employee is not required to repay benefits received.

Dated and mailed November 30, 2006
mckinta . urr : 132 : 2 : VL 1007.01  MC 627

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ. The commission has adopted the ALJ's factual findings but reaches a different legal conclusion when applying the law to the facts found.

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