DOUGLAS G CLIFTON, Employee

O K CREDIT REPORTING SERVICE INC, Employer

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:

The employee worked about 25 years as a manager for the employer, a collection agency.

On December 1, 2006, the employee contacted the president regarding whether the president was aware that a contract the employer was about to enter into with a vendor had "opened-ended-payments." The employee also suggested that the employer not tell customers that he was retiring or considering selling the business. The conversation, per the employee's contemporaneous notes of December 1, 2006, was as follows:

"At this point in our conversation, JSL began a barrage of insults and threats. JSL stated 'The last straw was my refusal to sign a business loan for O K Credit.' Also, that 'The staff would send out solicitation and I would never follow-up.' Also, that 'All I would do is play with the stand alone computer in my office.' JSL also stated that 'He believes I will deliberately do some damage to the new computers or data.' Also stated that 'If I take a list of clients when I leave OKC that he will sue me.' (Became very heated and excited.) Also stated that, 'I can count on not being around after year end.' JSL demanded that I no longer handle the business accounts. I stated to JSL, since you're planning on getting rid of me, what do you intend to do for me? His reply was to talk to John Helgson as he had discussed it with him. JSL further stated, you're making it awful easy for me, then commented I'm not going to listen to any more of this and hung up."

The employee spoke to John Helgson on December 5 about the conversation he had with the president. The employee's notation of that conversation includes the following:

"When I advised John of Lindgren's statement to me that I could count on not being around after year end, John asked me what that meant, I advised John that it's beyond me but I assume it means he is going to fire me."

At the end of the conversation, Mr. Helgson advised the employee that he would get back to the employee by December 11, 2006. On December 11, the employee met with Mr. Helgson. Mr. Helgson advised him that he had left messages for the president to contact Mr. Helgson the week before and he had not heard from the president. Mr. Helgson again asked what the president had told the employee. The employee's notes state:

"Again I stated exactly what JSL said to me quote 'You can count on not being around after year end,' unquote. I told John, I'm not exactly sure what that means, either fire me or shoot me?? John again assured me that there will be no problem with paying for accumulated sick days at 60 days pay. However, claims don't know about back pay or pay matching pay increases given to all other staff members. John claims he will again try to reach JSL to discuss all, however, he will advise me if he talks to JSL."

The employee reviewed company policy and decided to quit because he found out that if he were fired at the end of the year he would lose unused vacation pay and sick pay. The employee submitted a resignation effective December 29, 2006 (week 52).

The initial issue to be decided is whether the employee quit his employment or was discharged.

A voluntary termination can encompass a situation where an employee does not actually say, "I quit." An employee can be considered to have voluntarily terminated his work even when the employer has discharged the employee. Likewise, a discharge can encompass a situation where the employee has submitted a resignation. If the evidence shows that the employee quit in lieu of impending discharge, the employer and not the employee is the moving party in the separation.
The commission and courts have previously held that resignation of one's employment in lieu of what the employee considers impending discharge does not constitute a discharge but rather a voluntary termination of the employment relationship and not with good cause attributable to the employer. See  David J. Teske v. LIRC and Village of Lake Delton, Sauk County Court Case 90-CV-330, July 3, 1991;  Michael J. Bailey v. LIRC and Weyauwega Public School, Dane County Court Case 86-CV-505, March 11, 1987; Dean B. Abbott v. Pepin Public School and LIRC, Pepin County Court Case 83-CV-16, June 20, 1984.

The determination of whether the employee quit or was discharged depends on whether the evidence establishes that the employer would not have allowed the employee to continue working if the employee had not resigned. The focus is on whether the evidence established that the employee's discharge was a certainty. See e.g., Fisher v. Black & Decker US Inc., (LIRC Dec. 11, 2001); Buchberger v. City of Sheboygan, (LIRC May 4, 2005); Mandl v. MBTI Inc., (LIRC April 5, 2002).

The employee submitted his resignation because he concluded that he was going to be discharged. There is no evidence that the employee intended to quit prior to December 1, 2006. The president told the employee that he should not count on being around at the year end. Further, when the employee asked the president what it intended to do for him, since the president was getting rid of the employee, the president did not disabuse the employee of the belief that the president was going to discharge him. Thereafter, the employee attempted to clarify his employment by consulting with the individual to whom he was directed by the employer. However, neither that individual nor the employee heard from the president.

The second issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer.

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."

While the president apparently objected to the employee's comments to the employer, those comments did not rise to the level of an intentional and substantial disregard of the employer's interests. While the employer may have had a valid reason for discharging the employee, it did not establish that he was discharged for misconduct connected with his work.

The commission therefore finds that in week 52 of 2006, the employer discharged the employee but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 52 of 2006, if he is otherwise qualified.

Dated and mailed July 30, 2007
cliftdo . urr : 132 : 1 : MC 629 VL 1007.15

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Eric D. Hendrickson

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