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

IN RE J. DOE, 06606496MW,

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06606496MW


On October 6, 2006, the Department of Workforce Development issued an initial determination which held that the employee had quit her employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on November 13, 2006 in Milwaukee, Wisconsin.

On November 15, 2006, a department administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately six years as a crewperson for the employer, an operator of a fast-food business. Her last day of work was Saturday, June 10, 2006 (week 23). The issue is whether the subsequent separation from employment in week 24 was a voluntary quit by the employee or a discharge by the employer. The commission concludes that it was a discharge by the employer, not for misconduct pursuant to Wis. Stat. § 108.04(5), and so reverses the appeal tribunal decision.

The employee was in a long-term abusive relationship with an individual (her domestic partner) who was the father of one of her children and with whom she lived. Approximately a year before the end of the employment, the employer had hired her partner to work at the employee's location. On the evening of her last day of work, her partner battered her again, and the employee decided finally to end the relationship. The next morning, before the beginning of the employee's scheduled shift, she telephoned the employer and told him about the assault the previous evening; she said she was afraid to come to work and that she did not know what to do. The employer told her she should not come into work. The employee asked about working a different shift, but the employer did not think that would be a good idea, either. The employee subsequently asked about a transfer to another of the employer's stores, but was told that would not be possible.

Where, as here, the employer does not state that the employee is discharged and the employee does not state that she is quitting the employment, it is necessary to determine who initiated the separation from employment. In the present case it was the employer, by his directive to the employee that she not report to her regularly-scheduled shift the day after her partner's assault upon her. The employee had asked the employer what to do; the employer instructed her not to report to work, either to her regular shift or to any other, and the employer also had no work for the employee at any of its other stores. Given this set of factors, it was the employer who initiated the separation and not the employee; the separation therefore is properly characterized as a layoff or discharge for unemployment insurance purposes, and not as a quit by the employee.

The commission therefore finds that, in week 24 of 2006, the employee was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance if she is otherwise qualified.

Dated and mailed February 12, 2007
In re J. Doe 06606496MW. urr : 105 : 1  MC 626

/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 determining to reverse the appeal tribunal decision in this case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge; no relevant factual assertions are disputed. Rather, the commission believes the undisputed facts require a different conclusion from that reached by the administrative law judge. Even had the commission found the separation to have been a quit by the employee, however, it still would have reversed the appeal tribunal decision on the ground that separation would have been with good cause attributable to the employer. The administrative law judge reasoned that the employer had no responsibility to remedy the dispute between the employee and her partner on the ground that it was a domestic difficulty. Had the employee's ex-partner not worked for the employer, the commission would agree. He did, however, which makes this a case of one employee committing a battery against a co-worker. Regardless of the circumstances of such an attack, if the employee victim of that attack reasonably no longer feels safe at the workplace because of the co-worker's attack, it is an employer's obligation to deal with the matter.

 

cc: Burger King No. 3626 (Milwaukee, Wisconsin)


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