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

GARY L JORDAN, Employee

BRAKEBUSH BROTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08002377MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for almost two years as an equipment cleaner for the employer, a chicken processing business. His last day of work was May 17, 2008.

All workers receive six days per year of unscheduled absences and earn two hours of benefit time each week to be used for any type of absence. The employer's work rules provide that a worker who is absent for any reason and does not have paid time to cover the absence receives a warning. The employer issues two written warnings and a final warning or suspension before discharge.

The employer has an attendance policy that provides if a worker receives four warnings during a 12-month period, the worker will be discharged. The employee received three attendance warnings. The employee missed work on April 29, because his girlfriend had surgery. He was warned on May 2. Prior to this time, the employee requested family medical leave for his girlfriend's surgery. The employer informed the employee that since he was legally married, and carried his wife on his health insurance policy, he did not qualify for family medical leave for his girlfriend's surgery. The employee had no vacation time to cover his absences. The employee was absent April 29, May 2 for after care training for his girlfriend and May 14 because he brought her home after she was discharged from the hospital. The employee was absent May 19, 20 and 21. On May 19, the employee called in and told the employer he was stressed out and had not slept in four days, between going back and forth to the hospital and work. A co-worker later called him and informed him that he would be discharged if he did not report to work. The employee was uncertain about who called him because he had been drinking heavily and was asleep when he got the call. On May 19, police officers arrested the employee when he was in the employer's parking lot, and he was taken to jail because he was under the influence of alcohol. The employee then stopped reporting to work because he assumed that the employer would discharge him. When the employer learned that he had gotten out of jail on the 20th but made no attempt to contact the employer for the next two days, it decided to discharge him.

In this case, the employee was aware, as of May 18, that the employer considered his attendance situation to be extremely precarious. The employee nonetheless, called in on May 19 either because he had been drinking or in order to drink. The employee indicates that at some point in the day, somebody from the employer called him and told him he would be discharged if he failed to report to work. The employee reported to work and was arrested in the employer's parking lot for driving while intoxicated. The employee was released the next day and made no effort to contact the employer on that or the next day because he assumed that the employer would discharge him. It was the employee's responsibility to determine his employment status rather than simply assuming that he had been discharged by the employer. His failure to do so was inconsistent with the continuation of the employment relationship and for unemployment insurance purposes the employee quit. It was not established that his quitting was with good cause attributable to the employer or for any other reason that would allow immediate benefit payment.

The commission therefore finds that in week 21 of 2008, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in weeks 26 through 43 of 2008, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), for benefits paid to the employee as a result of the ALJ's decision, because the overpayment was the result of a departmental error, and the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f). The commission has long held that an employee should not assume he or she has been discharged but has a duty to definitely ascertain his or her employment status. The appeal tribunal decision does not comment upon the employee's failure to contact the employer immediately upon his release from jail. The ALJ erred when failing to conclude that the employee had this responsibility.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2008, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,595.00 to the Unemployment Reserve Fund. The employee is not required to repay benefits paid for weeks 26 through 43 of 2008, in the amount of $5,742.00.

Dated and mailed November 12, 2008
jordaga . urr : 145 : 1  VL 1007.15  BR 335.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ who held the hearing said the employee was forthright in his testimony. The ALJ thought that the employee truly assumed he would be discharged for not reporting to work on May 19. However, the commission has long held that an employee cannot simply assume he or she has been discharged but that the employee should contact the employer to ascertain his or her employment status. In Keeler v. Sterling Products, UI Dec. No. 06606851MW (LIRC February 15, 2007), the commission concluded that a claimant who stopped reporting to work because she believed she would be discharged because of her attendance quit by abandoning her job.

 


Appealed to Circuit Court.  Affirmed June 9, 2009.

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uploaded 2008/11/12