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


GUADALUPE RUIZ, Employe

INTERLAKEN LODGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001473JV


On March 20, 1998 the Department of Workforce Development (department) issued an initial determination finding that the employe quit in week 35 of 1997 but not for a reason which would allow the payment of benefits. A hearing was held on April 21, 1998 before an administrative law judge (ALJ). On April 22, 1998 the ALJ reversed the department's initial determination, finding that the employe was discharged but not for misconduct connected with the employe's work within the meaning of Wis. Stat. § 108.04(5), in week 3 of 1998. The employer timely petitioned the commission for review of the adverse appeal tribunal decision.

On August 4, 1998 the commission ordered that testimony be taken before an ALJ, acting on behalf of the commission, with respect to the conversation the employe's son had with the employe's supervisor, David Ross, the employer's former executive chef regarding the employe's extended leave and complications stemming from his re-entry into the United States. The remand hearing was held on September 1, 1998 before an 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 appropriately 23 years as a chef for the employer, a hotel. The employe's last day of work was August 30, 1997 (week 35). After the employe's last day of work, the employe began a one month vacation in Mexico. While on vacation in Mexico, the employe had his pocket picked and all of his identification papers were lost including his alien registration card and his Mexican passport. Consequently, the employe was unable to re-enter the United States without these documents. The employe called his son who also worked at the employer's hotel and told his son to contact the employe's supervisor, the executive chef and notify him of the situation. According to the employe, his son spoke to the executive chef who informed the employe's son that the employe could return to his job when he re-entered the United States and that he would inform the hotel's personnel department. When the employe was finally able to return to the United States, three months after his vacation was to have ended, the employe was told by the newly employed executive chef that there was no work for the employe.

The issue for review is whether the employe voluntarily terminated his employment or whether the employer discharged the employe. After resolution of this issue is determined, the next inquiry is whether the employe is eligible for benefits.

At the original hearing in April of 1998, the only witness to appear was the employe. The employe explained that the only contact he had with the employer was through his son. His son did not appear at the hearing. The ALJ based his findings solely on the employe's testimony that his son served as the contact between the employe and the employer. The employe believed that his job would remain open until he was able to re-enter the United States based on his son's representation. Consequently, when the employe did appear at the employer's hotel after his re- entry into the United States, approximately three months after his vacation was to have ended, the employer informed the employe that it had already replaced the employe. The ALJ subsequently found that the employer discharged the employe but not for misconduct in week 3 of 1998.

The commission was troubled by the nonappearance of the employe's son to verify that he indeed had direct contact with the employer and that an extended leave was granted when the employer learned of the employe's plight. Consequently, the commission ordered a remand hearing. Neither the employe nor his son appeared at the remand hearing. However, the employer's former executive chef, David Ross did testify. At the remand hearing the employer established that it did not grant the employe an extension of his one month vacation. The employe was expected to return on or about October 1, 1997. However after that date, the employe had no further contact with the employer. The employer left the employe's job open for several weeks and eventually replaced the employe. According to Mr. Ross, the employe did not have any contact with him until January of 1998 when the employe initiated a claim for benefits.

Based on the evidence adduced at the original hearing and the remand hearing, the commission finds that the employe voluntarily terminated his employment on or about October 1, 1997 (week 40) when he failed to remain in contact with the employer after his expected return date. The commission believes that the employe's failure to maintain minimal contact after his expected return date with the employer was not only unreasonable but inconsistent with the continuation of the employment relationship. Although, Wis. Stat. § 108.04(7)(b), may have been applicable, the employe was unable to establish any employer fault or omission since it was the employe who failed to keep in contact with the employer and establish that his leave was extended. The employe's situation reflected an unusual predicament and had the employe remained in contact with the employer a different result may have been reached.

Therefore, the commission finds that in week 40 of 1997, the employe terminated his employment but not with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b) or within any of the statutory exceptions that would allow the payment of benefits.

The commission further finds that the employe was paid benefits amounting to a total of $2,900 for which the employe is not eligible and to which the employe is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 40 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $2,900 to the Unemployment Reserve Fund.

Dated and mailed: September 25, 1998
ruizgua.urr : 135 : 7  VL 1001.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with either ALJ. The commission reverses the ALJ's decision because it believes that the employe's conduct was inconsistent with the continuation of the employment relationship. Had the employe maintained further contact with the employer during his re-entry into the United States, the commission may have been less inclined to find the employe as the moving party in the employment separation. However in this case, the employe's failure to maintain any contact with the employer after his expected return date was unreasonable, even if his son had spoken to the employer. The employe's quitting fails to establish any statutory exception to the quit disqualification found in Wis. Stat. § 108.04(7)(a). The employe was provided with an opportunity both at the initial hearing and the remand hearing to have his son appear to establish that the employe's extended leave had been granted. The employe failed to do so each time. The commission therefore reverses the appeal tribunal decision.

cc:
INTERLAKEN RESORT


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