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

RICHARD  A  MERICA, Employee

AMERICAN FLUID POWER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07004925MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2007, if otherwise qualified.

Dated and mailed February 21, 2008
mericri . usd : 115 : 1   MC 627  MC 627  VL 1007.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer contends that the employee quit. A quit, however, requires more than an indefinite intent to leave work at some future date. See, Augsburger v. Seefeld Family of Funeral Chapels, Inc., UI Hearing No. 99401959AP (LIRC Dec. 23, 1999). The employee here did not provide a date certain for leaving his employment, but instead told the employer he would be leaving when he was able to sell his Wisconsin home and locate other employment in Kentucky. See, McKinley-Duart v. Sundara Spa LLC, UI Hearing No. 06002263BOm (LIRC Nov. 30, 2006) (notice from employee that would be resigning when found other employment not a quit).

The employer argues that the employee told the owner he was resigning at the end of July of 2007. However, the employee denies this and the owner did not testify at the hearing. The testimony of the owner's son that his father told him this is hearsay. The employer now requests further hearing to take the owner's testimony. However, further hearing is not merited. Despite cautions from the department that the hearing before the ALJ would be the parties' only opportunity to offer evidence, the employer took no action to make other arrangements, e.g., appearance by phone, for taking the testimony of the owner, who was on vacation in Florida at the time of the hearing.

The record shows that the employer initiated the separation on July 12, 2007, and the employee then requested he be permitted to stay until July 27, i.e., the owner told the employee the employer did not require his services any longer, effective immediately, and the employee simply requested more time. This would not constitute the naming of a date certain by the employee for his resignation. The employer then unilaterally determined that the separation would be effective July 16. This was a discharge, not a quit. See, Marino v. Fond du Lac Association of Commerce, UI Hearing No. 03000733FL (LIRC Sept. 25, 2003)(if employee indicates intent to quit when and if she finds other employment, and employer unilaterally sets an effective date for the separation, separation is a discharge, not a quit); Volden v. Linen Center, UI Hearing No. 02007461LX (LIRC May 28, 2003).

 

cc: American Fluid Power



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