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

OTIS T FULTON, Employee

Q P S, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001881MD


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 for eight weeks as a sausage packer and hanger for a sausage-making client of the employer, a staffing service. His last day of work was June 8, 2006.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee injured his ankle on or about his last day of work. He notified his supervisor with the client that he could not work. His supervisor told him that if he could not work Friday night as scheduled, he would not have the assignment any longer. He did not report for work on Friday, June 9 (week 23). The employee telephoned the client to report that he would be absent. He did not notify the employer. On Friday, June 9, 2006 (week 23), or June 16, 2006 (week 24), he appeared at the employer's office to get his paycheck. At that time, the employer's office supervisor told him that it did not have another assignment for him.

The employer asserted that the employee quit his employment when he failed to notify the employer of his absence(s) from work. That contention cannot be sustained. The employer did not establish at the hearing that the employee was aware that his failure to contact the employer, rather than the client, would be considered a voluntary termination. The employee testified that he believed he was to contact the client for whom he worked if he was going to be absent. The employer maintained that the employee is instructed at orientation to contact the employer. The employer further testified that the application states the call-in process. However, the record does not demonstrate that the employer's witness conducted the employee's orientation. Further, the evidence does not establish that the employee read the back of the application or that he was given a copy of the application. In addition, the application was not presented at the hearing. The employee contacted the client to alert the client that he would not be appearing for work. The record does not demonstrate that the employee was aware that his failure to contact the employer would end his employment. The employee did not intend to quit and did not act in a manner inconsistent with an intent to maintain his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The commission infers from the employee's testimony that the employer refused to place him in another assignment because he did not follow the employer's call-in procedure. (1)   Again, as it was not demonstrated the employee was aware of that procedure, the employer did not establish that the employee engaged in conduct that demonstrated an intentional and substantial disregard of its interests.

The commission therefore finds that in week 23 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 23 of 2006, the employer discharged the employee but not for misconduct connected with his work for the employer.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2006, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 11, 2007
fultoot . urr : 132 : 8 :  MC 626  MC 605.05

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility. The ALJ indicated generally that he found the employee to be credible. The commission likewise found the employee's testimony credible. Further, the employer's witness did not have firsthand knowledge of the events leading to the employee's separation from employment. The employer's witness, Ms. Manley, was testifying from documentation containing notes made by another individual, Kelly, regarding the alleged interactions between the employee and Kelly. When asked why Kelly did not appear at the hearing, instead of the Ms. Manley, Ms. Manley stated that Kelly was in an office 15 or 20 miles away from the witness. The commission found this a curious explanation since this was a telephone hearing. The ALJ could have called Kelly, if she had been designated as a witness by the employer, instead of Ms. Manley.

The record made at the hearing does not clearly reflect whether the employee missed more than one day of work. However, the employee did not file for benefits in either week 23 or 24 of 2006.

Finally, had the commission agreed with the ALJ that the employee quit his employment, it would have remanded this matter for further proceedings. The employee was in his first and only assignment with the employer and would have quit within ten weeks of beginning work for the employer. In such circumstances, the ALJ must make a finding as to whether the wages, hours and other conditions of the employment were substantially less favorable to the employee than existed for similar work in his labor market. No labor market information was presented at the hearing upon which to make such finding.



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Footnotes:

(1)( Back ) Wisconsin Statute § 108.04(5g) imposes a disqualification from benefit eligibility for an employee who is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, if the employer satisfies the requirements set forth in paragraph (d) of that subsection. For that subsection to apply, the employee must have been absent without notice on 5 occasions or more in the 12-month period preceding the date of discharge, or tardy without notice on 6 occasions or more in the 12-month period preceding the date of discharge. Paragraph (d) requires, among other things, that the employer have a written policy that notifies an employee that failure to provide adequate notice of an absence or tardiness may lead to discharge and the employer gave the employee at least one warning concerning the employee's violation of the employer's written policy within the 12-months preceding discharge. The employer did not establish that (5g) applies as the employer testified that its policy states that a failure to provide notice will constitute a quit and the employer did not assert or establish that the employee was ever warned for failing to provide notice of an absence.

 


uploaded 2007/07/13