ROBERT S KANTOR, Employee

FIBREFORM CONTAINERS INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 16, 2008
kantoro . usd : 150 : 1 MC 626 MC 605.01

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer petitioned the appeal tribunal decision arguing that the employee should be denied unemployment insurance benefits based upon the circumstances of the termination of the employment relationship.

The employer initially argued that the employee voluntarily terminated his employment with absences without proper notice to the employer. Where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge the commission looks for the party that initiated the ultimate separation. Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000). Further, although the statutory concept of voluntary termination is not limited to the situation where an employee says, "I quit," and may, in fact, include situations where the employer has discharged the employee, in order for a voluntary termination to be found, the employee's actions must evince an intent to leave the employment, with such intention indicated by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship. See Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980) and Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953). In this case, the record reflects that as of June 18, 2007 (week 25), the employee vaguely requested time off. Over the next several weeks, the employee was absent with only sporadic contact with the employer but was never put on notice that his actions jeopardized his employment or actually terminated it. The employer also failed to establish any written policies by which the employee would know that his actions jeopardized the employment and conceded that the employer bent the rules over this situation. Further, while the employee indicated that he planned to terminate his employment when he was hired by another employing unit, he stated that he wanted to work for the employer until such time as he could secure new employment.

Where an employee indicates an intent to quit, but only when he finds another job and without any definite date set for him to quit, and the employer unilaterally determines the effective date for the separation, this constitutes a discharge, not a quit. Kоеnіngѕ v. Соmmеrсіаl Wеаthеr Ρrооfіng Services Inc., UI Dec. Hearing No. 03004661WK (LIRC March 5, 2006) (citing Marino v. Fond Du Lac Association of Commerce, UI Dec. Hearing No. 03000733FL (LIRC September 25, 2003); Volden v. Linen Center, UI Dec. Hearing No. 02007461LX (LIRC May 28, 2003); Munroe v. Goodwill Industries of North Central Wisconsin, UI Dec. Hearing No. 02403107AP (LIRC January 31, 2003)).

Under these circumstances, it was the employer's actions that severed the employment relationship; the employee was discharged, he did not quit.

Wisconsin Statute § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that his or her performance is not satisfactory and give him or her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979).

As mentioned previously, the employer did not promulgate written attendance rules and agreed that it "bent" its expectations related to the employee. As such, the commission agrees with the ALJ that the employee's actions were not a knowing or intentional violation of the standards of conduct that the employer had a right to expect.

For these reasons, the appeal tribunal decision is affirmed.

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uploaded 2008/01/23