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

CHRIS M GROHOLSKI, Employee

OLD TOWN PUB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000750MD


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 approximately 15 months as a kitchen manager/assistant general manager for the employer, restaurant and bar located in Madison, Wisconsin. His last day of work was Monday, January 29, 2007 (week 5).

The employer's handbook, which the employee received, directs workers

If you are ill and cannot work your shift, you must notify a manager three hours before your shift. If someone calls in for you, you will still be responsible for insuring that your message reaches your manager promptly. You must call-in to a manager every day you are ill unless instructed otherwise by your manager. . .

If you are absent from your scheduled shift without giving notice to a manager within 24 hours you are assumed to have abandoned your position and your employment with Old Town Pub will be terminated.

The policy also provides for extended leaves of absences which were to be written and requested at least four weeks prior to the start date.

On Tuesday, January 30, 2007, the employee requested to leave work because he was ill and could not work that evening. The employee also generally referenced taking some leave in the future. The general manager explained that if the employee delayed leave for a month, he was eligible for a week of vacation. The general manager granted the employee leave for the evening of January 30 but asked the employee to let the manager know the employee's intentions for the next day.

Even though the employee received a message from the employer on Wednesday, January 31, 2007 inquiring how he was, the employee was absent without notice to the employer on Wednesday, January 31, 2007. The employee also did not report to work or contact the employer on Thursday, February 1, 2007. Although the manager anticipated having the employee work on Friday, February 2, 2007 to "cover" the shift of the worker who was covering the employee's shift on Tuesday, January 30, 2007, the employee was never actually scheduled to cover the Friday shift. The employee was, however, scheduled to work Saturday, February 3 and Sunday, February 4, 2007; Sunday was "Superbowl Sunday."

On January 30, 2007, the employee traveled to Stevens Point, Wisconsin, where his mother resides. He attempted to make a medical appointment at a Stevens Point facility he had been treated at in the past. The first available appointment was for March 9, 2007. The employee decided wait to at the facility for a cancellation in hopes of receiving treatment. That evening, he contacted the employer's business; neither the manager nor the manager's wife, who also worked at the business, were there, the employee left a message to be called.

At approximately 10:30 p.m. on Friday, February 2, 2007, the employee again telephoned the employer's business. Neither the manager nor his wife were there, it was very busy and the employee left a message that the manager did not receive.

At 8:30 a.m. on Saturday, February 3, 2007, the employee telephoned the manager to report that he was available to work his shift that evening. The manager instructed him that the employee was not to work that evening and that the employer considered the employee to have abandoned employment. The employee arrived in Madison at 1:00 p.m. and reported to the employer's business. Once there a subordinate coworker informed the employee that the employee would be terminated. Consequently, the employee removed his work keys and left them at the business. The employee met with the manager after "Superbowl Sunday" and the manager informed the employee that his employment had ended based on his failure to report to work without notice to the employer.

The employee petitioned the appeal tribunal decision contending that he did not quit but was discharged. Specifically, he agued that the manager understood that he would not be able to return to work immediately and that, based on a past practice, the employee did not believe further notification to the manager of his absences was necessary. The manager disputed this, contending that the manager understood that the employee would contact him on Wednesday, January 31, 2007 and, that when the employee did not do so, was absent for two shifts, and failed to contact the manager directly until three days later, the employee abandoned his job.

Given these contentions, the issue before the commission is whether the employee quit or was discharged and, given the nature of the separation, whether the employee is eligible for unemployment insurance benefits.

Typically, a discharge is an unequivocal action taken by an employer, leaving no shred of doubt as to the employer's intentions. Rice Lake Creamery v. Ind. Comm., 15 Wis. 2d 177 (1961). The statutory concept of voluntary termination is not limited to the situation where an employee says, "I quit," and may, in fact, include situations where the employer has discharged the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). A voluntary termination occurs when "an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship." Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953).

The commission credits the manager's testimony regarding the January 30, 2007 conversation. In particular, the employee admitted in his testimony that he only requested Tuesday off from work but "assumed" that he was going to be off for more than one day. He also conceded that the manager told him that he would cover the shift (Tuesday) and that the employee should let him know what was going on. Then, on Wednesday, when the employee was absent without notice the manager unsuccessfully attempted to contact the employee via his cellular phone, obviously to ascertain the employee's intent. Under these circumstances, even by his own testimony, the employee was obligated to notify the manager about his Wednesday shift situation. The employee had the manager's cellular telephone number to contact him directly but did not do so and was again absent without notice to the manager on Thursday, February 1, 2007. Given the nature of the employer's business and the naturally anticipated busy weekend, the employee's continuing failure to contact the manager on Friday, February 2, 2007 constituted actions so inconsistent with the continuing employment relationship as to evince a quitting. Thus, when the employee finally contacted his manager and was informed the employment relationship no longer existed, the commission treats this as a quitting.

The general rule when a worker quits is that he or she is ineligible for unemployment insurance benefits unless his or her quitting falls within an exception listed within the statutes. See Wis. Stat. § 108.04(7). Arguably, the only two statutory exceptions that might apply are a quitting with good cause attributable to an employing unit and a quitting due to a physical inability to perform the work, Wis. Stats. § § 108.04(7)(a) and (c), yet both those provisions require that the worker have no reasonable alternatives to quitting. In this case, the employee could have contacted the manager as expected. His failure to do so removes his circumstances from these exceptions and the employee failed to establish that his quitting fell within any other exception to allow for the immediate payment of unemployment insurance benefits.

The commission therefore finds that the employee was not discharged within the meaning of Wis. Stat. § 108.04(5) but voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and his quitting was not within any exception to allow for the immediate payment of unemployment insurance benefits.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 5 of 2007 and until four weeks have elapsed from the week of the quitting and until the employee has earned wages in covered employment performed after the week of the quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed July 9, 2007
grohich . urr : 150 : 1 MC 626   PC 734

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM DECISION

The employee petitioned the appeal tribunal decision, referencing several sections of the Wisconsin statutes to support his claim that he should receive unemployment insurance benefits. Additionally, the petitioner attempts to add information not presented at the hearing in this matter. The petitioner also expresses concern that the administrative law judge did not review all the evidence presented and/or lacked impartiality. In questioning the ALJ's impartiality, the petitioner noted that the ALJ conducted a hearing with the same employer immediately prior to the petitioner's hearing with the employer.

Based upon the seriousness of the petitioner's concern regarding the impartiality of the ALJ, the commission addresses this concern first. While departmental records confirm the petitioner's claim that the ALJ conducted another hearing that day with the employer, that fact by itself does not suggest a lack of impartiality; if parties have multiple hearings, it is most efficient to group them on the same day and with the same ALJ. In fact, departmental records reflect that, in the other matter involving the employer, the employer "lost" its case on the merits. Further, after the employer appealed that matter to the commission, the commission similarly found in favor of that claimant. The commission's careful review of the record of the hearing, including the digital record, reflects that the ALJ conducted the hearing in an impartial manner, appropriately securing "the facts in as direct and simple a manner as possible." See Wis. Admin. Code § DWD 140.16(1). Additionally, in its review of this matter, the commission has based its decision upon an impartial review of the evidence in the record and without bias. There was no favoritism shown the employer and the commission is confident that the petitioner has received a fair hearing and decision.

With respect to the information offered in the petition but not contained within the hearing record, the commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The reverse of the hearing notice explained:

This hearing is your only opportunity to present documents and testimony as evidence in this case. Any future review of this case is based upon the record made at this hearing.

Further, although the commission does have the discretion to order the taking of additional evidence, that authority is only exercised in a few exceptional circumstances that have not been established to exist in this matter. For these reasons, no additional hearing will be scheduled and the commission cannot consider and will not address the factual assertions, documents and the audio tape attached to the petition for review, which are not supported by the record. (1)

The commission has rewritten the appeal tribunal decision to reflect the fact that the employer did not establish that the employee was actually scheduled to work on Friday, February 2, 2007. The commission agrees with and adopts the ALJ's findings with respect to the employee's conversation with the manager on January 30, 2007 and affirms the finding of a voluntary termination based upon the employee's actions following January 30, 2007, which the commission considers so inconsistent with a continuation of the employment relationship as to constitute a quitting. As such, the petitioner's reference to the fact that he did not receive any prior disciplines and should be allowed benefits under Wis. Stat. § 108.04(5g), does not apply because Wis. Stat. § 108.04(5g) applies to situations of a discharge for a "failure to notify an employer of absences."

The remaining petition reference which the commission will address is the petition cite to Wis. Stat. § 108.04(13g), actually Wis. Stat. § 108.04(13)(g). This statutory section was created to define employer fault in cases in which there is an erroneous payment of unemployment insurance benefits. It is not applicable to this matter as the employee has been denied unemployment benefits at the initial determination, the appeal tribunal and commission level, with no erroneously paid benefits.



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Footnotes:

(1)( Back ) To support his version of the events, the employee alleges that the manager and his wife were investigated for a fraudulent claim for benefits, referencing Wis. Stat. §108.04(c), actually Wis. Stat. §108.04(11)(c). In effect, the employee is attempting to offer evidence of a matter unrelated to the separation of employment to support his claim that the manager's version of the events is not to be credited. The commission specifically declines to remand the hearing for such "character" evidence and, instead, assesses witness credibility based upon each witness's evidence on the separation itself.

 


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