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


LANCE M WEEK, Employe

CUSTOM GRANULAR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003263JV


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three years as a machine operator for the employer, a chemical processing business. His last day of work was December 11, 1997 (week 50).

The employe had worked 10-hour shifts on the third shift in the week ending December 13. He was next scheduled to work on December 15, at 10 a.m. until 6 p.m. When the employe reported to work there was not a new timecard available for him to punch. Rather, his old card was there with a note on his timecard from the prior week, from his supervisor Ms. Brommer, which stated "Do not punch in. Ron should be in tonight." Ron is the owner of the business. The employe did not speak to Ms. Brommer about the note but left the employer's premises.

The employe went home and waited for the employer's owner to call. The employe left because he had been at a meeting at which the owner said that if Ms. Brommer clocks an employe out the employe is done until the owner can come in and discuss it with Ms. Brommer. The owner was not always at the work facility during a week. The employe considered his employment to have ended on Monday, December 15 when the employer did not contact him. On December 18, 1997 (week 51), the employe began an unemployment insurance claim.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged. The second issue is whether he is eligible for benefits based on his separation from employment.

The commission finds that the employe was discharged by the employer. The employe was instructed at 10:00 a.m. not to punch in and that the owner would be there that night. Certainly, he could not be expected to wait, without pay, until the owner came in. Further, if the supervisor expected the employe to speak to her, she could have written a note giving such direction, such as "Don't punch in. Come see me." She did not. The onus was on the employer to contact the employe. The employe acted reasonably in waiting for the employer to contact him. The employer did not make such contact. The employer did not appear at the hearing to explain the note or its failure to contact the employe. Likewise, the employer offered no evidence to establish that the employe was discharged for misconduct connected with his work.

The commission therefore finds that in week 51 of 1998 the employe did not voluntarily terminate his employment with the employer within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that in week 51 of 1998 the employe was discharged by the employer but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, the employe is eligible for benefits beginning in week 51 of 1998, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: October 15, 1998
weekla.urr : 132 : 6 MC 626

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission does not disagree with any credibility determination made by the administrative law judge but reaches a different legal conclusion when applying the law to the facts.

cc: ATTORNEY GARD STROTHER
KREKELER & SHEFFER SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]