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

ANTHONY L BURROUGH, Employee

SEEK CAREER STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08608392MW


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 the employer, a temporary staffing agency, for approximately one year. He last performed services for one of the employer's clients on November 4, 2008 (week 44), when that assignment ended.

The employer has a policy which provides that any absence or tardiness must be excused with acceptable written documentation presented within two business days. The employee received a copy of this policy when he began working for the employer.

On November 6, 2008, the employer offered the employee work to begin the following day. The employee accepted. However, the employee called in sick on November 7, and again on November 10, his next scheduled day of work.

When the employee called in sick on November 10, 2008 (week 46), he was told that his employment was suspended until he provided documentation for his absences, per the employer's policy. The employee said, "okay." The employer explained that it did not need a doctor's excuse, and that a handwritten note from the employee would suffice. The employee had had past attendance problems and the employer wanted the employee to demonstrate his intent to continue working for it.

The employee did not provide the employer with the documentation it requested. After about a week had elapsed with no further contact from the employee, the employer determined that the employment relationship had ended.

At the hearing the employee explained that he was homeless and living out of his car, and that he intended to handle writing the note once he got himself situated. The employee stated he had no money to mail a note and had other things on his mind. Although the employee indicated that he had intended to report for work on November 11, had he not been suspended, he did not ask the employer whether he could provide the note at that time.

The question to decide is whether the employee quit or was discharged, and whether is eligible for benefits based upon that separation.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated, "I quit." An employee can voluntarily terminate employment by knowingly refusing to take action that would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188, 366 N.W.2d 702 (Ct. App. 1983). An employee 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 relationship. Dentici v. Industrial Comm., 264 Wis. 2d 181, 186, 58 N.W.2d 717 (1953).

In this case, all the employee had to do to keep his job was provide a note explaining the reason for his absences. If the employee's personal circumstances prevented him from doing so, he should have told the employer this instead of agreeing to provide the note. The employer was not aware the employee was homeless and had no reason to believe there was any impediment to the employee providing the requested document and returning to work. The employee's failure to provide the note or make any effort to preserve the employment relationship was conduct so inconsistent with a continuing employment relationship as to evince an intent to quit.

Having concluded that the employee quit, the next question to determine is whether his quitting fell within any statutory exception permitting the immediate payment of benefits. The employee quit by failing to provide written documentation addressing his absences. The employer's requirement that he do so was not inherently unreasonable, and the employee gave no indication that he considered it problematic. The evidence does not establish that the employee's quitting was with good cause attributable to the employer or for any other reason constituting an exception to Wis. Stat. § 108.04(7)(a).

The commission therefore finds that in week 46 of 2008, the employee voluntarily terminated his work with the employer pursuant to Wis. Stat. § 108.04(7)(a), and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in weeks 46 of 2008 through week 10 of 2009 in the total amount of $2,751,(1) for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

However, the statute provides that the department shall waive recovery of benefits that were erroneously paid if the overpayment was the result of a department error. Wis. Stat. § 108.22(8)(c). The statute defines "department error" 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, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10)(e). The law is clear that where the employee had the last chance to preserve the employment relationship but chose not to do so, the separation from employment is a quit. See, Lаwlеѕѕ v. Advocap Inc. (LIRC, Nov. 19, 2007). Consequently, that portion of the employee's benefits that was paid as a result of the appeal tribunal decision was paid because of an error of law.

The commission, therefore, finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), with respect to that portion of the employee's benefits that was paid due to the appeal tribunal decision, because those benefits were overpaid as the result of a department error, and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(f). See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 46 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 his weekly benefit rate that would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,391 (2) to the Unemployment Reserve Fund.

Dated and mailed March 20, 2009
burroan . urr : 164 : 1 VL 1025

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the appeal tribunal decision about witness credibility and demeanor. The commission's reversal is not based upon credibility, but is as a matter of law.



Appealed to Circuit Court.  Affirmed, September 4, 2009.

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Footnotes:

(1)( Back ) The employee received $170 each for weeks 46 and 47 of 2008, $29 for week 48 of 2008, $170 each for weeks 49 through 52 of 2008, $172 for week 1 of 2009, and $170 each for weeks 2 through 10 of 2009. $1,360 of those benefits was paid since the issuance of the appeal tribunal decision on January 16, 2009 (week 3), $170 a week for each of weeks 3 through 10.

(2)( Back ) The total overpayment was $2,751, of which $1,360 was waived. $1,391 of the overpayment remains.

 


uploaded 2009/04/03