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

KURT F HUETTL, Employee

CONTINENTAL PROPERTIES CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08601359MW


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 3 of 2008, if otherwise qualified.

Dated and mailed May 29, 2008
huettku.usd:115:1  MC 625 ; MC 640.06 ; MC 665.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked two years as a maintenance technician for the employer, a real estate management business.

Prior to January 2, 2008, the employee had reported to Ron Schilling (Schilling), the maintenance supervisor, and Bill Haines (Haines), the property manager. Starting January 2, Schilling and Haines were considered the employee's peers, and the three of them reported to Diane Duhig (Duhig), the new property manager.

Prior to January 2, 2008, in order to take vacation leave, the employee would inform Schilling orally, arrange for his responsibilities to be covered by other workers during his absence, and note his vacation days on an office calendar. The employee was not informed by the employer that this practice would no longer be acceptable after January 2, 2008.

The employee testified that, prior to January 9, 2008, he made arrangements with Schilling to have his responsibilities covered during his absence; and, on January 9, wrote and highlighted on an office calendar on Duhig's desk that he would be on vacation January 14-18.

Duhig testified that, when the employee did not report to work on January 14, she asked other workers, including Schilling, where the employee was, and they indicated they did not know. This testimony as to the content of the workers' responses to Duhig is hearsay.

Duhig also testified that Andrew Doyle (Doyle), a leasing associate, told her on January 14 that he had not seen the employee's vacation notice on the calendar prior to that date. This testimony is hearsay.

Schilling did not testify at hearing, so the employee's testimony that he arranged vacation coverage with Schilling is unrebutted.

Duhig testified that she consults the office calendar every day, and did not see the employee's notation of his January 14-18 vacation until Saturday, January 12. The ALJ, however, did not credit this testimony and found instead, consistent with the employee's testimony, that he had made this notation on January 9. The commission has found no persuasive basis in the record for overturning this credibility determination.

The employee was reasonably justified in believing he had followed the proper procedure in arranging vacation leave from January 14-18. Consistent with his past practice, he had arranged vacation coverage for his responsibilities, and, by noting his vacation dates on the calendar on Duhig's desk, had provided notice to his supervisor.

On January 14, Duhig phoned the employee. When the employee told her he was on vacation, Duhig told him he had been required to clear his vacation through her and, because he had failed to do so, he was "not on vacation but refusing to work." The employee asked what would happen if he did not report to work January 14-18 and Duhig, as she concedes, said nothing.

On January 15, John Allain (Allain), the employer's director of marketing and human resources, phoned the employee, and told him that he did not have an approved vacation that week, was needed at work, and was required to report to work. The employee responded that his vacation was on the calendar, and he had arranged coverage of his responsibilities with Schilling. When Allain continued to challenge him in this regard and told him that his failure to report to work would be regarded as a quit, the employee indicated he had no intention of quitting, and stated, "You can take your job and stick it up your ass," and hung up on Allain.

On January 16, the employee received a letter from the employer indicating that he had quit. The employee phoned Allain and told him he had not quit and intended to return to work the following Monday (January 21). Allain directed him to return his keys and any other employer property.

The employee performed no further work for the employer.

The first question is whether the separation was a quit or a discharge.

This question generally depends upon which party initiated the separation, i.e., a quit is initiated by the employee and a discharge by the employer. 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," 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); Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953).

The employer asserts that the employee was understood to have quit when he did not report to work after being directed to do so by Duhig and Allain. Although, under certain circumstances, this could be interpreted as action inconsistent with the continuation of the employment relationship, those circumstances are not present here. First, the record shows that the employee was reasonably justified in not reporting to work since he had followed the proper procedure in scheduling his vacation. Moreover, the employee consistently stated to the employer that he did not intend to quit his job.

The employer argues, at least by implication, that the employee's statement to Allain on January 15 could be considered an indication of an intent to quit. However, first of all, the employer did not rely upon this at hearing as a reason for its belief that the employee had quit. In addition, considering that the employee was justifiably frustrated by the employer's unreasonable requirement that he end his vacation and report to work, and considering that the employee consistently indicated that he had no intention of quitting his job, the employee's remark is not reasonably interpreted here as establishing a quit.

The employer initiated the separation and it should be considered a discharge.

The next question then is whether the employer sustained its burden to prove that the employee engaged in misconduct.

The employer did not sustain this burden. Refusal to follow an employer directive is not generally found to be misconduct if this directive was an unreasonable one and the employee had a defensible reason for disregarding it which he communicated to the employer. See, Poss v. Oshkosh Truck Credit Union, UI Hearing No. 05400577OS (LIRC May 6, 2005).

As discussed above, the record shows that the employee followed his customary practice in scheduling vacation for January 14-18, including providing notice to, but not seeking approval from, his supervisor, and was not informed by the employer prior to January 14 that this practice was no longer acceptable. As a result, the employer's directive that he report to work during his scheduled vacation was an unreasonable one, and the employee had a defensible reason for disregarding it, which he communicated to the employer. The employer has failed to prove that the employee's actions in this regard constitute misconduct.

In regard to the profanity the employee directed at Allain, the employer did not cite this as a basis for its decision to end the employment relationship, and the record does not show that it formed part of the actual reason for the discharge. See, Brojanac v. Ackerville Garage, Inc., UI Hearing No. 03602624WB (LIRC Jan. 7, 2004)(commission's role to measure the actual reason for the discharge against the misconduct standard); Lepak et al. v. James River Paper Co., Inc., UI Hearing No. 93400404GB (LIRC Dec. 16, 1993).



 

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