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

JENNIFER M FINK, Employee

HABELMAN BROS COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09000922MD


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 was a seasonal worker for the employer, a cranberry grower. For the 2008 season, she began work on September 2, 2008, and the last day she performed work was November 6, 2008 (week 45), when the employment relationship ended.

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee's duties included assisting with the examination of product samples, packing, and warehouse preparations such as cleaning and painting.

After the employee arrived late for her shift on November 6, the employee was told by Vicki Stone (Stone), the assistant to the supervisor, that Joe Habelman (Habelman), one of the employer's owners, was uncomfortable with the employee's sample weighing technique and no longer wanted her performing that task, and she would instead be assigned to the packing line. Stone also told the employee that certain of her coworkers had complained that the employee left her work station for extended periods of time, and was suspected to have been sniffing whiteout and aerosols in the bathroom and her personal vehicle during these absences.

The employee then began working on the packing line but was observed by Stone to be "somber, tearful, and careless." After her lunch break, the employee told Stone she was so upset by her coworkers' accusations that she had been unable to compose herself and needed to leave for the day as a result. Stone replied that the employee had already missed too much work and, if she left early that day, the employer would regard it as a quit. When Stone directed the employee to return to the packing line, the employee stated "I just can't," left the work site, and never again performed services for the employer.

Stone testified that she gave the employee the ultimatum on November 6 because "this was not the first time the employee had become upset at work," she had already had sufficient time on November 6 to compose herself, and she had "missed a lot of time due to personal problems,' including several days on the anniversary of her mother's death.

The employee testified in rebuttal that her time on the line/lunch break had not provided enough time for her to compose herself on November 6; and she had not missed a lot of work time for personal reasons and, in fact, had "stayed at work while I was upset about my mother."

The first question is whether this was a quit or a discharge. The ALJ held it was a quit because the employee had the opportunity to maintain the employment relationship by remaining at work on November 6. However, the separation is more aptly characterized as a discharge. Simply because the employer presented the employee with an ultimatum does not render this a quit. As the commission stated in Mitchell v. Metro Caster LLC, UI Hearing No. 06604157MW (LIRC Nov. 3, 2006):

It is true that the employee had an opportunity to maintain the employment relationship by cutting up the picnic table. However, any worker whose separation results from her intentional actions has the opportunity to maintain the employment relationship by simply not engaging in such actions, whether such actions are attendance infractions, theft, or, as here, refusal to comply with an employer directive. A discharge is not converted to a quit simply because the employer issues an ultimatum.

In Cotton v. Crown Services, UI Hearing No. 03607152MW (LIRC April 15, 2004), the commission considered a fact situation somewhat similar to the present one. In Cotton, the employee requested a day off work to visit his ill mother, but was told that, if he did not work that day, he would be replaced. The commission held the resulting separation a discharge, but not for misconduct.

That is the appropriate result here. The record does not show that the employee intended to quit her employment, but instead that the separation was initiated by actions of the employer.

The next question is whether the employee's decision to leave the work site rather than finish her shift constitutes misconduct. The employee did violate an employer directive to return to work. However, this directive was not a reasonable one. The employee explained that she was unable to continue working on November 6 because she was very upset that certain of her coworkers had accused her of sniffing whiteout and aerosols while on duty. The employer implies that the employee's reaction was unreasonable or invented. However, it would not be unreasonable, given the serious nature of the accusations, for a worker to react in the manner the employee did. The employer concedes that, after learning of the accusations, the employee was "somber" and "tearful." Although the employer contends that the employee had a pattern of missing work for minor personal reasons, the employer did not prove this. The employee was in the best position to assess whether she was able, given her emotional state, to continue working that day, and the record does not show that the employee's assessment of her own abilities was unreasonable or invented.

Violation of an unreasonable employer directive is generally not held to constitute misconduct. See, Poss v. Oshkosh Truck Credit Union, UI Hearing No. 05400577OS (LIRC May 6, 2005). Moreover, in the absence of a showing that a worker had a history of unjustified and unexcused absences, leaving work early with notice to management has generally not been held to constitute misconduct. See, Achterberg v. Great Lakes Packaging Corp., UI Hearing No. 07600164WB (LIRC June 13, 2007). As a result, the employee's decision not to follow the employer's directive to complete her shift on November 6 was reasonably justified, and did not constitute misconduct.

The commission therefore finds that, in week 45 of 2008, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7), but that she was discharged and her discharge was not for misconduct 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 45 of 2008, if otherwise qualified.

Dated and mailed July 3, 2009
finkjen . urr : 115 : 6  MC 626  MC 640.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision because it did not overturn any of her material findings of fact but instead reversed her decision as a matter of law.

 


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