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

JENNIFER L GUENTHER, Employee

CPR SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08602275WK


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, if otherwise qualified.

Dated and mailed June 5, 2008
guentje.usd : 135 : 1

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer contends that the employee could have elected to enroll in evening courses but instead she enrolled in day time classes which required her to voluntarily terminate her full-time position with the employer. Wis. Stat. § 108.04(7m) provides, in part, that an "employee whose employer grants the employee's voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of subsection (7)."

Here, both the employee and employer agreed that the employee's transfer from a full-time position to a part-time position would be re-examined as of February 29, 2008 and one of three things would happen: (1) the employee would continue as a part-time worker; (2) the employee would revert to a full-time position, if one was available and offered to her, or; (3) the employee's resignation from December 2007 would be accepted by the employer. The ALJ correctly found, based upon this understanding and agreement between the employee and the employer, that the employee's reduction in hours was not indefinite as required by Wis. Stat. § 108.04(7m). Therefore, the employee's transfer to part-time hours under these circumstances did not constitute a quit based upon a voluntary reduction in hours within the meaning of Wis. Stat. § 108.04(7m).

The remaining issue is whether the employee's discharge on January 22, 2008 constitutes misconduct within the meaning of Wis. Stat. § 108.04(5). The employer argues in its petition that the ALJ failed to consider prior warnings that the employee had accrued as a full-time employee. The ALJ however specifically found that the employee's previous warning for tardiness on January 4th was not in conformance with any progressive disciplinary procedure and did not place the employee on notice that she would be discharged in the event she was again tardy. Admittedly while the employee's actions on January 18 and January 21st were unsatisfactory, her actions do not amount to a violation of her assurance that she would perform her duties in a responsible manner as a part-time employee. Since the employer discharged the employee on her second day of working as a part-time employee it was not established that the employee would not be able to fulfill her assurance of performing her duties. Thus, while the employer made a valid business decision to discharge the employee, the reasons for discharging the employee do not constitute misconduct within the meaning of the Wis. Stat. § 108.04(5).



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uploaded 2008/06/20