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

LYNN A STRONG, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605515MW


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 13 years as a part time supervisor for the employer, a parcel service. Her last day of work was July 24, 2007 (week 30).

Prior to the start of the employee's shift on Wednesday, July 25, 2007 (week 30), the employee received a telephone call from the manager of a separate employer location. The employee had been dating that manager for approximately five years. He notified the employee that she needed to terminate her employment or he would be discharged based upon a policy prohibiting personal relationships between supervisors.

Upon receiving this telephone call, the employee telephoned her supervisor and explained what she had been told. She asked if there were any other options. Her supervisor, the center manager, responded that he would contact his superiors and would return a telephone call to her. When the center manager telephoned her, he informed her that she did not have to submit a resignation letter but that she should turn in her identification with the employer's business and, because she had accumulated two personal days, her last day of work was extended to Friday, July 27, 2007 (week 30).

The employee never returned to work for the employer thereafter. She initiated a claim for unemployment insurance benefits.

In Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000), the commission stated,

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 which initiated the ultimate separation.

In this case, the ultimate separation was initiated by the employer's management. Further, its demand that she turn in her UPS identification is similar to a demand that an employee turn in his or her keys, which has been treated as a discharge by the commission. See Eiler v. Shoney's Restaurant, UI Dec. Hearing No. 01402295AP (LIRC, Oct. 26, 2001). Under these circumstances, the commission finds that the employee did not quit but was discharged.

Under Wis. Stat. § 108.04(5) a worker who is discharged is ineligible for unemployment insurance benefits if the discharge is for misconduct connected with the employment. Thus, the next issue is whether the employee was discharged for misconduct.

The employer did not appear at the hearing in this matter and the employee credibly testified that she performed her work to the best of her ability. There is no evidence of misconduct.

The commission therefore finds that in week 30 of 2007, the employee did not voluntarily terminate her employment but was discharged and her discharged was not for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(7) and Wis. Stat. § 108.04(5).


DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified, is reversed. The employee is eligible for benefits beginning in week 30 of 2007, if otherwise qualified.

Dated and mailed November 30, 2007
stronly . urr : 150 : 8  MC 626

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to reversing the decision in this matter. Only the employee appeared and, consequently, her testimony was undisputed. Further, the employee's reversal is based upon a differing legal conclusion as to the nature of the separation of employment.


cc: United Parcel Service, Inc. - Elm Grove, WI


 

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