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

NICOLET N KEELER, Employee

STERLING PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06606851MW


On October 25, 2006, the Department of Workforce Development issued an initial determination which held that the employee quit 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 December 4, 2006 in Milwaukee, Wisconsin before a department administrative law judge. On December 6, 2006, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 6 years and 8 months as an assembler for the employer, a manufacturer. Her last day of work was September 27, 2006 (week 39), and the issue in the case is the proper characterization of the subsequent separation from employment. The commission concludes that it was a voluntary quit by the employee, not for a reason allowing for immediate eligibility for unemployment insurance. The commission therefore reverses the appeal tribunal decision.

The employer has an attendance policy pursuant to which one will receive a 3-day suspension upon receiving 8 "points" (assigned for unauthorized absences) and be discharged upon reaching 10 points. The employee missed work on September 25, 2006; that attendance failure put her at 8.5 points, and resulted in a 3-day suspension, to be served September 28 and 29 and October 2. The employee did not report to work on her next scheduled day of work, October 3, because her 7-year-old son was ill. She missed work again on October 4, for the same reason. At this point, the employee assumed she would be discharged pursuant to the employer's attendance policy so she essentially abandoned the employment, returning to the employer (via a co-worker) her building access card. The employee subsequently telephoned the employee's human resources generalist to inquire about her final paycheck.

The employer notified the employee on October 9, 2006 that it considered her to have quit her employment, and the commission agrees. A discharge is an unequivocal action taken by an employer, leaving no doubt as to its intentions. See Rice Lake Creamery v. Industrial Comm'n, 15 Wis. 2d 177 (1961) and Wilson v. Reinke Service, UI Dec. Hearing No. 02600504MW (LIRC July 31, 2002). The courts have also 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 of the employee that he or she has been fired (or is going to be fired). An employee owes a duty to definitely ascertain his or her employment status before concluding that the employment relationship has been terminated by the employer. Eisenberg v. Industrial Comm'n, Case No. 116-225 (Dane Co. Cir. Ct., January 5, 1966). In the present case, the employee did not ascertain her status, and the employer had not taken the administrative steps it takes when discharging an employee. Instead, the employee assumed that she would be discharged and simply ceased reporting to work. That makes the separation from employment a voluntary quit by the employee, however, and not a discharge by the employer.

The commission therefore finds that, in week 40 of 2006, the employee voluntarily terminated her work with the employer, within the meaning of Wis. Stat. § 108.04(7)(a), not for a reason constituting an exception to that section. The commission also finds that the employee was paid benefits in the amount of $329.00 per week for each of weeks 41 of 2006 through 3 of 2007, totaling $4,935.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee must repay $4,935.00 to the Unemployment Reserve Fund.

Dated and mailed February 15, 2007
keeleni . urr : 105 : 1   VL 1007.15

/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 matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge; the commission has found essentially the same facts as the administrative laws judge found. Rather, the commission believes those facts establish a quit by the employee and not a discharge by the employer.

After deciding the case, the commission received additional correspondence from the employee in the form of letters of support from various persons. The commission does not question the employee's character in the least by its decision. It remains the case, though, that the employee's admitted actions constitute a voluntary quit of employment under Wisconsin law.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc:
Daniel McMurray
Santo A. Galati


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