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


DONALD R BLOEDEL, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604413MW


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 one year for the employer, a temporary help agency. His last assignment was from October 3, 1997 to May 26, 1998. On April 20 the employe mentioned to the employer's staffing consultant, Ms. Klug, that he was going on vacation. On May 4, the employe notified Ms. Klug that he had okayed the vacation time with his supervisor and Ms. Klug indicated that was fine. On May 21 he notified the employer that his assignment would end on May 26 (week 22) and he would be gone on vacation from May 27 to June 9 and would call when he returned. In his absence, the employer began looking for work for him to begin when he returned. It had a goal of returning him to work by June 17.

The employe contacted the employer on June 10 and indicated he was available for work. The employer indicated it would look for work for him. On June 17, 1998 (week 25), the employe notified the employer that he had found permanent work on his own and was no longer available for work with the employer.

The initial issue to be decided is whether the employe voluntarily terminated his employment week.

The employe went on a two-week unpaid vacation. He notified the employer the month prior to going of his intent to go on vacation and confirmed his vacation days with the employer. He notified the employer that his supervisor at the client location had okayed the vacation and the employer indicated that was fine. The employe notified the employer that he would return on June 9 and did promptly notify the employer on June 10 that he was available for work. Finally, while he was on vacation the employer was looking for work for him to do when he returned. The employe in no way acted inconsistently with continuing his employment. The employer did not treat the employe's actions as a quitting. The employe did not quit. The employe went on an approved vacation.

Wisconsin Statute § 108.04(1)(b)2., provides:

"(b) An employe is ineligible for benefits:

2. While the employe is on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, whichever occurs first."

The commission's interpretation of the voluntary leave provision where the leave involves only portions of the week is that benefits are denied to the extent the claimant refuses work or fails to perform work where work is available. Thus, if the employer had work available for the employe, the wages the employe would have earned had he not been on a voluntary leave are imputed to him and used to determine his benefit eligibility. See Schier v. Rustic Stag Inc., UC Dec. Hearing No. 95201047EC (LIRC Sep. 27, 1995); Hanks v. County of Racine, UC Dec. Hearing No. 94606859RC (LIRC Feb. 8, 1995); Nettesheim v. The Swiss Colony Store, UC Dec. Hearing No. 92609237WK (LIRC Mar. 2, 1993).

For unemployment purposes, the employe was on a leave of absence granted for a definite period of time. The employe earned wages of $168 in week 22 of 1998. His weekly benefit rate is $182. The employe was entitled to reduced benefits in week 22 of 1998 in the amount of $89.00. See Wis. Stat. § 108.05(3). The employer did not offer any testimony to the effect that but for the employe's vacation it would have had additional work available for him in week 22 of 1998. The employe was on vacation for all of week 23 of 1998 and is therefore ineligible for any benefits for that week. The employe's leave encompassed only a portion of week 24 and therefore the employe is potentially eligible for benefits in that week. The employer indicated it had been looking for work for him upon his return but did not find any. Therefore, there is no basis for reducing benefits in week 24 based on a work available issue. However, the question remains whether the employe was available for 50 percent of suitable work in week 24 of 1998, given his absence during part of that week. Accordingly, such availability issue will be remanded to the department for investigation. In addition, testimony at the hearing indicated that the employe quit his employment in week 25, therefore that issue is likewise remanded to the department.

The commission therefore finds that in week 22 of 1998 the employe did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that the employe was on a voluntary leave of absence during a portion of week 22 of 1998 and was eligible for reduced benefits of $89.00 in that week pursuant to Wis. Stat. § 108.04(1)(b)2. and Wis. Stat. § 108.05(3).

The commission further finds that the employe was ineligible for benefits in week 23 of 1998 because he was on a voluntarily leave of absence granted for a definite period of time within the meaning of Wis. Stat. § 108.04(1)(b)2.

The commission further finds that in week 24 of 1998 the employe was on a voluntary leave of absence granted for a definite period and that he is eligible for benefits in that week pursuant to Wis. Stat. § 108.04(1)(b)2.

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 in the amount of $89 in week 22 of 1998. He is ineligible for benefits in week 23 of 1998. The employe's eligibility for benefits in week 24 is remanded to the department for resolution of his availability for work in that week. Finally, the commission remands this matter to the department for resolution of the issue of whether the employe quit his employment in week 25 of 1998 for any reason which would allow the immediate payment of benefits.

Dated and mailed: October 20, 1998
bloeddo.urr : 132 : 1 AA 128

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission does not disagree with any credibility determination made by the ALJ but reverses his decision upon reaching a different conclusion when applying the law to the facts.


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