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

ANA M ROSE, Employee

SECURITY PERSONNEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602097MW


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 months as a security officer for the employer, a security services provider. Her last day of work was February 12, 2007 (week 7).

On February 9, 2007 (week 6), the employee expressed concerns about her client assignment and told the employer that if she were not reassigned she would quit. She showed the employer a recruitment letter that she had received from another security services provider. The employer transferred the employee to a new post that same day.

On February 13, 2007 (week 7), the employer received a complaint about the employee from the client where the employee had just been assigned. The employer contacted the employee and asked her to come in for a discussion. The employee was unable to meet with the employer until February 16, 2007 (week 7). At that meeting, the employee accused the employer of always criticizing, she stated that she was too good of a security guard to be treated like she had been by the employer and that she should have quit the week previous when she had shown the recruitment letter to the employer. The employer responded by saying that he interpreted her statements to be a resignation and he accepted her resignation. The employee said she was not resigning but was being fired by the employer. Thereafter, the employee was not allowed to work for the employer and she initiated a claim for unemployment benefits.

The issue to be decided is whether the employee quit or was discharged and, ultimately, her eligibility for unemployment insurance benefits.

The employer contended that the employee voluntarily resigned her employment by her comments on February 16, 2007. The commission disagrees.

Where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge one looks for the party that initiated the ultimate separation. Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000). 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). Yet, in order for a voluntary termination to be found, the employee's actions must evince an intent to leave the employment, with such intention indicated 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).

In this case, while the employee may have referenced quitting at the meetings of February 9 and 16, she did not actually give notice of quitting at either. At the first meeting, when the employee raised concerns regarding continuing her employment with the employer, the employer agreed to transfer the employee and she continued working. Based on this past conduct, the employee certainly could not have anticipated the response of the Human Resources Manager to her statements on Friday, February 16. Neither her words nor her actions were so inconsistent with the continuation of the employment relationship as to end it. Instead, it was the employer that initiated the ultimate separation and, thus, the employee was discharged.

Wisconsin Statute § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that his or her performance is not satisfactory and give him or her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979).

While the employer may have made a valid business decision in discharging the employee, it has not established that the employee's actions constituted misconduct connected with the employment. No firsthand evidence was offered with respect to the client complaint and, while the employee did express dissatisfaction with the employer's treatment of her, there was no evidence of prior warnings or notice that such behavior jeopardized her employment.

The commission therefore finds that in week 7 of 2007, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but was discharged and her discharge was not for misconduct within the meaning of within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance benefits beginning in week 7 of 2007, if otherwise qualified. There is no overpayment associated with this decision.

Dated and mailed July 30, 2007
roseana . urr : 150 : 1 MC 626

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission's reversal is not due to any differing interpretation of witness credibility but instead based upon a different conclusion of law as to whether the employee's actions constituted a voluntary termination. For the reasons stated above, the commission found the separation to be a discharge not a voluntary termination.

 


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