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

TERRY L KERKMAN, Employee

DEPARTMENT OF HEALTH & FAMILY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603766RC


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 approximately 4 and 1/2 years as a part-time food service assistant for the employer, the Southern Wisconsin Center, a division for Long Term Care under the Department of Health & Family Services. Until January 1, 2007 the employee worked part-time first shift and this schedule did not conflict with her college schedule. The employee was enrolled in college under a Pell grant and subject to finishing her degree in a certain time or face repayment of her schooling tuition.

In September 2006, the employer began to make preparations to change the way it prepared food for the center's residents. All current work schedules were in the process of being changed based on seniority effective January 1, 2007. Sometime in late November or December the employee became aware that on January 1, 2007 she would be required to work second shift from 12:30 to 4:30 p.m. and that this shift would conflict with her college class schedule The employee was able to work the revised schedule until January 23, 2007 when college resumed. At that time the employee began using paid time off when her work schedule conflicted with her school schedule.

In March of 2007 the employee's director supervisor, the food service manager, spoke with the employee and informed her that she was running out of paid vacation time. The employee's supervisor suggested that the employer hire an LTE for the remaining semester on the days that conflicted with the employee's school schedule. The employee expressed concern with the idea because any absence covered by an LTE would be considered absent without pay (AWP) and unexcused. The employee asked her direct supervisor whether she would be disciplined for having an excessive amount of unexcused absences. The supervisor responded that she could not tell the employee whether or not the employee would be disciplined because only the personnel department could make that decision. The employee's paid leave would cover her until April 24, 2007 leaving the employee with the decision to quit or face discipline for the unexcused absences by that date.

On April 7, 2007, the employee contacted the personnel department and requested a leave of absence for education to finish up her last four weeks of school. The employee spoke with personnel employee Pat Fettes who informed the employee that no such leave existed and that she was not eligible for a leave under the Family Medical Leave Act. The human resource director, Rebecca Eichner was on maternity leave throughout most of this matter involving the employee. James Henkes was the interim director during the last several months of the employee's employment. Neither James Henkes nor Pat Fettes testified at the hearing leaving the employee's testimony regarding her conversations with them unrebutted.

After being informed that an educational leave of absence did not exist, the employee tendered her resignation to her supervisor on April 8, effective April 24, 2007 when all her paid time off would be exhausted. Shortly thereafter the employee contacted her union. The union informed the employee to write a letter to the interim director James Henkes pleading her case. When Mr. Henkes failed to respond to the employee's written reconsideration, she called him on April 23, 2007 to see if he had received her written reconsideration. The employee testified that she did not speak with Mr. Henkes directly but spoke with his assistant who informed the employee that she should look into an educational leave of absence. The employee immediately went to the personnel office and asked Pat Fettes why she failed to inform the employee that an education leave of absence existed. Ms. Fettes then informed the employee that she had until the end of the day to rescind her resignation or request her educational leave request in writing. Approval for or rejection of the leave would take approximately two weeks. The employee prepared a written request for an educational leave of absence.

The following day, April 24, 2007, the employee spoke with the interim director James Henkes and asked whether he could expedite her request for an educational leave of absence and approve the leave personally. Mr. Henkes informed the employee he would not do that. The employee asked the interim director whether she should quit or wait the two weeks to see if her leave would be approved or possibly face discipline for any unexcused absences. The interim director advised the employee that it would be best for her to select the option in which she resigned and preserve her possibility for future State employment. The employee followed the employer's advice and quit on April 24th, 2007 when her paid leave ran out.

The ALJ found that the employee quit in lieu of being discharged, finding that the employee's actions clearly demonstrated her intent to continue the employment relationship. The commission however is not persuaded that the employee quit in lieu of being discharged. There is insufficient evidence in the record to establish that a discharge was being considered or even contemplated by the employer, even though the employee speculated she would face discipline, including discharge.

Case law has established that an employee maybe found to have voluntarily terminated his or her employment despite the fact that the employee never expressly stated "I quit." For unemployment insurance purposes a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action which would allow his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Department, Wis. 2d at 119; Dentici v. Industrial Commission, 264 Wis. 181, 186 (1953). Here, the employee made a personal decision to voluntarily terminate her employment effective April 24, 2007 when her paid leave ran out.

Concluding that the employee quit, the next inquiry is whether the employee's quitting meets any exception to the quit disqualification found at Wis. Stat. § 108.04(7)(b). Courts have held that to constitute "good cause" for quitting, the employee's reason must relate to some real, substantial and unreasonable act on the part of the employer. Worachek v. Koch Brothers, Inc. & Ind. Comm., Wisconsin Circuit Court Case No. 104-461 June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965).

The commission concludes that the employee's decision to quit was based on misinformation provided by the personnel department on April 7, 2007 and that this misinformation constituted employer fault. Had the employee been properly apprised about the existence of an educational leave of absence on April 7 when she first spoke with a personnel representative the employee could have applied for the leave and waited the two weeks for its processing before having to make a decision regarding her continued employment with the employer. Additionally, when it was made clear to the interim director that the employee was given misinformation regarding the existence of an educational leave, he could have expedited her request once he learned of the misinformation provided to the employee. This failure along with the misinformation regarding the leave provided the employee with good cause attributable to the employer for quitting.

The commission therefore finds that in week 17 of 2007, the employee terminated work with the employer with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is modified, and as modified, is affirmed. Accordingly, beginning in week 17 of 2007, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 13, 2007
kerkmte . urr : 135 : 1  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Rebecca Eichner

MEMORANDUM OPINION

The commission did not confer with the ALJ regarding her credibility impressions because the commission affirms the ALJ's decision with modifications. The commission however is persuaded that the employee voluntary terminated her employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).


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