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


STEVEN J SONNENTAG, Employe

LIBERTY HOMES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000411EC


On January 3, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 51 of 1997 the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On March 5, 1998, the appeal tribunal issued a decision which amended and modified the initial determination to find that the employe voluntarily terminated his employment in week 50 of 1997. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 for the employer, a manufacturer of mobile homes, for about five months doing electrical work. His last day of work was December 12, 1997 (week 50).

The employe's normal work day was from 7:00 a.m. until approximately 3:30 p.m. and he habitually rode to and from work with another worker, Stewart Serafin, in Mr. Serafin's car. On Friday, December 12, Mr. Serafin had to leave work early in order to attend a doctor's appointment. Because the employe relied upon Mr. Serafin for transportation, he planned to leave early too. At some point during the morning the employe saw his supervisor, Gerald Marten, walking past the mobile home in which the employe was working. The employe poked his head out the window and told Mr. Marten that he would be leaving early. Although Mr. Marten did not respond, the employe assumed he had heard him because he waved his hand.

The employe punched out at approximately 11:30 a.m. and left for the day. When the employe reported for work on Monday morning (week 51) his time card was not there and he was told by the employer that he was considered to have quit.

The initial question to decide is whether the employe quit or was discharged.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer contends that the employe left work early without obtaining permission from his supervisor and that his actions in this regard amounted to a voluntary quit. The commission disagrees. The commission finds credible the employe's testimony that he did tell his supervisor he would be leaving work early and that he thought he had Mr. Marten's approval to do so. While Mr. Marten indicated that the employe did not say anything about leaving work early, the commission finds it plausible that Mr. Marten, who was walking past the mobile home in which the employe was working, simply did not hear the employe and that the employe incorrectly interpreted a wave of the hand as an assent. Given that the employe had always informed his supervisor in the past when he would be leaving early and had always received approval to do so, the commission considers it unlikely that he would not have said anything on this occasion, in spite of coming into contact with Mr. Marten on several occasions during the course of the morning.

Moreover, even if the commission were to conclude that the employe failed to tell his supervisor he was leaving work early, it would still be disinclined to find a voluntary quit under these facts. While the employe did leave work before the end of his shift, leaving work early is not always tantamount to job abandonment. In this case, there was no event preceding the employe's early departure which would suggest that he intended to quit, and it is clear from the record that his reason for leaving early was related solely to his need for transportation home. The employe had never been told that leaving work early without permission would be regarded as a quit, and he reported to work as scheduled for his next assigned shift. Given these circumstances, the commission does not believe that the employe had any intention of quitting or that his actions were so inconsistent with a continuing employment relationship as to be deemed a voluntary quit.

Having concluded that the employe was discharged, a secondary issue to resolve is whether the discharge was for misconduct connected with his employment. The employer has not asserted that the employe was discharged for misconduct and, although the evidence might permit a conclusion that the employe left work early on one occasion without seeking permission to do so or providing proper notification, a single attendance violation is insufficient to warrant a finding of misconduct.

The commission therefore finds that in week 51 of 1997 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is amended as to the week of issue and, as amended, is reversed. Accordingly, the employe is eligible for benefits beginning in week 51 of 1997, provided h is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: November 3, 1998
sonnest.urr : 164 :  VL 1007

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding the credibility and demeanor of the witnesses. The administrative law judge questioned the credibility of the employe's testimony that he told his supervisor he would be leaving early because the employe initially implied that he told Mr. Martin several times, but later indicated that he only told him once, and because the employe's witness could not corroborate his version of events. However, while the employe's initial testimony is somewhat vague with respect to how many times he told his supervisor about his plans for an early departure, the employe did not assert that he told Mr. Marten more than once, and his testimony contains no actual inconsistencies on his point. Regarding the employe's witness, the commission notes that the witness did not contradict the employe's version of the facts but simply had poor recall of events. (Although the dissent quotes a question asked by the employer's representative as though it were the witness' testimony, the actual testimony of the witness was that he "did not think" the employe's supervisor waved the employe off, and it is clear from the entire context of the witness' testimony that his recall of events was extremely limited.) While the employe's witness did little to help the employe's case, the commission does not believe that his inability to offer corroborating testimony renders the employe's testimony incredible. For these reasons, as well as those set forth in the body of the decision, the commission is inclined to accept the employe's testimony as credible. Moreover, as stated in the body of the decision, even if the commission were to arrive at a different credibility determination, it would still find an employer-initiated separation under these facts.


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe's witness gave a different version than the employe of what occurred on the last day of work. The witness testified that the supervisor said "alright," when the employe told him he had to leave early. The witness said that the supervisor "did not wave him off or anything like that." The employe said he believed the supervisor heard him because he waved at him.

I agreed with the administrative law judge that the employe abandoned his job that day. When the employe had asked the employer for permission to leave early in the past, he had been given permission. This time when he did not ask the employer pulled his timecard because they believed he had quit. There was no reason that the employe could not have asked the supervisor for permission to leave early.

For these reasons, I would affirm the appeal tribunal decision.

/s/ Pamela I. Anderson, Commissioner

 

cc: ATTORNEY FRANK L NIKOLAY
NIKOLAY JENSEN SCOTT GAMOKE & GRUNEWALD SC


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