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

RALPH D MARKIEWICZ, Employee

McCORMICK & SCHMICK RESTAURANT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08608750MW


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 about one week as a line cook for the employer, a seafood restaurant. His last day of work was March 9, 2008 (week 11).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

Following the employee's last day of work, the employee was absent from work on his next two scheduled work days, March 11 and 12, because he was incarcerated. A friend of his notified the employer of his absences on these days. On March 12, the employee called the restaurant and spoke to an assistant chef. He explained what had happened and the assistant chef told the employee he would have the executive chef call the employee. The employee called the restaurant again on March 13. The executive chef either did not get the message to call the employee or was extremely busy and failed to call the employee. When the executive chef didn't call the employee, the employee did not attempt to return to work or call the employer's restaurant again. He returned to work for the employing unit where he had been working prior to working for the employer.

The employee was absent for two days with notice to the employer. The employee made multiple attempts to determine his employment status. The employee had been told the employer would contact him. The employer failed to do so. The employee made reasonable attempts to determine his employment status. The employer's statement that it would contact the employee left it to the employer to advise the employee that he was still employed. It did not do so. The employee's two absences with notice did not rise to the level of misconduct connected with his work for the employer.

The commission therefore finds that in week 11 of 2008 the employer discharged the employee but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2008, if he is otherwise qualified.

Dated and mailed March 31, 2009
markira . urr : 132 : 1 : MC 626

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ's findings reflect that he accepted the employee's testimony. The employer admitted that it could only vaguely recall the circumstances surrounding the end of the employee's employment. The commission has reached a different legal conclusion than reached by the ALJ.

 

cc: McCormick & Schmick Restaurant Corp. (Wauwatosa, Wisconsin)


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