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


ROBERT F RAUTH, Employe

JEWEL FOOD STORE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605789MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three months as a security guard for the employer, a supermarket. His last day of work was on July 8, 1998 (week 28).

On July 9, 1998, the employer's loss prevention manager informed the employe that he was placed on suspension until further notice, pending an investigation of an incident that had occurred on July 8. The employe understood at the time of the suspension that his employment had not been terminated. The employe knew at the time of the suspension that the employer would be contacting him to tell him when he could return to work.

The loss prevention manager attempted to contact the employe by telephone about two or three days after the suspension to let the employe know of the employer's decision to suspend his employment for five days. He was unable to contact the employe by telephone. Other members of management called the employe but were unable to contact him. Messages were left on his answering machine. Finally, a letter was sent to the employe on July 20, which indicated that the employer had attempted to contact the employe beginning July 13. The letter instructed the employe to contact the employer by July 30 and failure to do so would result in a finding that the employe voluntarily terminated his employment.

The employer was unable to contact the employe because beginning the day after his suspension, until the first week in September, he was out of town working on a farm. Although messages were left on his answering machine and his wife had signed for the July 20 letter on or about July 29, he did not learn of the employer's attempts to contact him until August. He read the letter and understood that he had been terminated. He did not respond to the letter because he had received it after July 30.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged. The second issue is whether the employe is eligible for benefits based on the nature of the separation.

An employe may be found to have voluntarily terminated his or her employment despite the fact that the employe has never expressly stated "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980). An employe can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employe may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

The commission finds that the employe voluntarily terminated his employment. The employe knew that the employer would be attempting to contact him to inform him when he could return to work. The employe, by his actions, made such contact impossible. The employe offered no reasonable explanation as to why he did not ask his wife to relay any message received from the employer to him in a timely fashion. Further, despite the employe's wish not to be disturbed, if he intended to maintain his employment it was his obligation to insure that the employer was able to contact him, or to initiate contact with the employer during his suspension from employment. The employe has offered no testimony to establish that his quitting was for a reason that would permit the immediate payment of unemployment benefits.

The commission therefore finds that in week 30 of 1998 the employe voluntarily terminated his employment and not for any reason permitting immediate benefit payment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employe was paid benefits in the amount of $2018.00 for weeks 30 through 43 of 1998, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 30 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment equaling four times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $2018.00 to the Unemployment Reserve Fund.

Dated and mailed: November 24, 1998
rauthro.urr : 132 : 7  VL 1007

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission does not disagree with any credibility assessment made by the ALJ. The commission has reached a different legal opinion when applying the law to the facts.


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