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

DEBRA A POLLICH, Employee

BEL RESOURCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06606056MW


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 five months as a temporary worker for the employer, a staffing service. Her final assignment, for Imperial, began on July 26, 2006. Her last day of work was August 2, 2006 (week 31).

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

The employee worked her shift at Imperial on August 2. The employee was not scheduled to work on August 3, but called both Imperial and the employer that day to provide notice that her daughter had been killed in a motorcycle accident and she would be unavailable for work until her daughter's funeral was held, but that she wanted to continue working for the employer in the Imperial assignment after the funeral.

Imperial informed the employee on August 3 that she could return to her position after taking care of this personal matter. Also on August, 3, the employee expressed to the employer a desire to continue in her position at Imperial and the employer informed her that she could return to that position.

The employee called the employer on August 7 to provide notice that her daughter's funeral would be held the next day and she would contact the employer after the funeral in regard to the Imperial assignment. On August 9, the employee contacted the employer, advised that the funeral had been held, and indicated that she was ready to return to work at Imperial. The employer told the employee at that time that there was no work available for her, and, when the employee reminded the employer that she had been assured that she could return to her position at Imperial, told her that the employer might be able to place her back at Imperial as soon as things "picked up."

The employee made contact with the employer again on August 14 and was told that things were "still slow."

The employer contacted the employee on September 8, after the employee had spoken to Imperial, and offered to place the employee in the assignment at Imperial. The employee accepted this offer.

The administrative law judge concluded that the employment relationship ended in week 31, presumably on August 3. The commission disagrees. The evidence of record shows instead that, through their actions of August 3, the employee and employer mutually agreed that the employment relationship would continue while the employee dealt with a grave personal tragedy.

The employee, within the meaning of Wis. Stat. § 108.04(1)(b)1. (1), suspended her employment on August 3 because she was unavailable for work as the result of her daughter's death, and the employment relationship continued until, on August 9, after the employee indicated she was again available for work, the employer failed to offer her an assignment or credible assurance that another assignment would soon be forthcoming. See, Jones v. Seek, Inc., UI Hearing No. 99601034MW (LIRC July 6, 1999)(a temporary help employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future). The separation which occurred on August 9 was a discharge. Smith v. Cornwell Personnel Associates Ltd., UI Hearing No. 03608179MW (LIRC May 27, 2004)(end of assignment initiated by employer and, in absence of offer of new assignment or credible assurance that offer would soon be forthcoming, employment relationship ended and separation a discharge). The record does not show that the employee engaged in any misconduct.

In its petition, the employer asserts that the record shows that Belinda, the staff member with whom the employee spoke on August 3, "informed her that we could not hold her position, but to let us know when she could again work, and we would work to find a new assignment for her." However, Belinda did not testify at the hearing, nor were her notes or any other contact notes offered as hearing exhibits. As a result, the employer's testimony in this regard is uncorroborated hearsay. Moreover, even if the employer's witness's testimony in this regard, which apparently relied on such contact notes, could be considered competent, it was not reliable. The record shows that the employer's witness acknowledges misinterpreting such notes during the course of his hearing testimony, i.e., he originally testified that the employee had spoken to staff member Jason on August 3, and then corrected his testimony, indicating that he "misread the handwriting on the file," to state that the employee had spoken not to Jason but to Belinda.

The employer also asserts in its petition that its contact notes do not show that the employee contacted the employer on August 7, 8, 9, or 14 as she testified, and, in fact, its contact notes indicate that the employer did not hear from the employee between August 3 and August 18. Again, the employer failed to offer any contact notes as hearing exhibits, and its witness's testimony in this regard is uncorroborated hearsay. In addition, the employer's witness acknowledges in his testimony that these would not have been the type of contacts its staff members were required to record.

As a result, the commission reverses the ALJ's decision in part to clarify that the employee was ineligible for benefits during the period of her suspension due to unavailability (August 3 through 8); but eligible for benefits thereafter because she was discharged by the employer but not for misconduct.

The commission therefore finds that, in week 31 of 2006, the employee suspended her employment with the employer because she was unavailable for suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that there was no overpayment of benefits here.

The commission further finds that in week 32 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is ineligible for benefits in week 31 of 2006 because she was unavailable for work. The employee is eligible for benefits beginning in week 32 of 2006, if otherwise qualified.

Dated and mailed January 18, 2007
pollide . urr : 115 : 2  AA 120

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 


NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

cc: Bel Resource Inc., Milwaukee, WI



 

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Footnotes:

(1)( Back ) 108.04(1)(b) An employee is ineligible for benefits:

1. While the employee is...unavailable for work, if...her employment with an employer was suspended by the employee...because the employee was...unavailable for suitable work otherwise available with the employer....

 


uploaded 2007/01/22