JANET M. WIELD, Employee

QUIZNOS, Employer

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:

The employee worked for the employer, a sandwich shop, for seven months as a clerk. Her last day of work was August 17, 2007 (week 33).

There was a theft at the sandwich shop on August 17, 2007, and the employer believed the employee to be responsible. The employer reported the matter to the police. The employee was scheduled to work on Sunday, August 19. The police officer investigating the theft advised the employer that, if it did not want the employee to work that day, it should call her and tell her there was a problem in the store and not to come in. The employer did so.

On Monday, August 20, 2007, the employee was arrested for theft and went to jail. The employee did not make any contact with the employer while she was incarcerated. The employee was released from jail on August 22, but made no contact with the employer. She performed no further work for the employer.

The question to decide is whether the employee quit or was discharged, and whether she is eligible for benefits based upon that separation.

The employer told the employee not to report for work on August 19, but did not give any indication that the employee would not be back on the schedule thereafter. The employee was arrested on August 20 and incarcerated until August 22. She did not make any contact with the employer during her incarceration or upon her release. While the employee may have been correct in her assumption that the employer would not want her back at work, the employer never told her she was discharged, and the employee made no effort to ascertain whether this was the case. The commission believes that the employee's actions in ceasing reporting for work and making no contact with the employer constituted a quit.

The commission, therefore, finds that in week 34 of 2007, the employee voluntarily terminated her work, within the meaning of Wis. Stat. § 108.04(7), and that her quitting was not within any statutory exception permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 34 through 43 of 2007 in the total amount of $615 (of which $96 is set forth in other decisions), for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2007, and until four weeks have elapsed since the end of the week of quitting, and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. This matter is remanded for a hearing and decision on whether the employee was at fault for the erroneous payment of benefits, and whether the employer failed to provide correct and complete information leading to the overpayment and, therefore, whether an overpayment is created and whether any created overpayment must be repaid.

Dated and mailed January 10, 2008
wieldja . urr : 164 : 1 VL 1007. 05

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility prior to reversing. The commission's reversal is as a matter of law based upon essentially the same set of facts as that found by the appeal tribunal.

At the hearing the employer requested an opportunity to present witness testimony by telephone on the question of whether it failed without good cause to provide correct and complete information requested during the department's fact-finding investigation. The administrative law judge indicated she would consider whether such testimony was needed, but ultimately concluded it was not, because benefits were allowed. The commission, having reversed to deny, now considers that testimony to be relevant and has therefore remanded for the taking of such testimony.

cc: Quizno's (Sheboygan, Wisconsin)

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uploaded 2008/01/18