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

STEVE F KARNER, Employee

SULZER MACHINE & MGF INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09200832WU


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 12 weeks as a machinist for the employer, a machine shop. His last day of work was March 3, 2009 (week 10).

The employee was originally hired to work on smaller machines but very soon after he started he was moved to a larger machine. The employee did not receive much training on the larger machine. He made several mistakes and was concerned about the errors he was making. It was a busy work environment and the employee was not given any direction, in spite of the fact that he was unable to perform his job in a satisfactory manner. On March 3, the president's son told the employee he was not comfortable assigning the employee to the next job on the machine. The employee was concerned and wanted to resolve the situation so he met with the president and mentioned his concern that things were not working out. The employee had been making mistakes and said things did not seem to be working out. He did not think he was meeting the employer's expectations. The employer viewed discharge as being "inevitable" and believed that the employee saw the writing on the wall. The employee and employer came to a mutual agreement that the employee's employment would end on that day, rather than at some date in the future.

The first issue is whether the employee quit or was discharged.

The employee argued that he did not quit but left under a mutual agreement to end the employment relationship. The commission agrees.

The employee was aware that the employer was not happy with his work. In fact, the employer agreed that the employee's discharge was inevitable. The employee was unable to do his job, and this was clear to both parties. "The commission has held that if an employer agrees to lay an employee off, at the employee's request, the employee is discharged. See Miller v. ABCO Building Corp., UC Hearing No. 97-607240 (LIRC Feb. 5, 1998); Daniel Jandourek v. Rogers Electric, UC Hearing No. 97401954 (LIRC Dec. 5, 1997). This case is similar in that, although the employee did not specifically ask to be laid off, he and the employer were aware that he would soon be discharged because he was not able to do the job. During the meeting with the president, the employee stated he did not think he could do the job and the employer asked him what he intended to do about it. The employee explained he had tried as hard as he could and felt that he should just call it a day and came to a mutual agreement that his employment should end. The employer informed him that he would very soon have been discharged.

The employer did not allege that the employee was discharged for misconduct. The employer agreed that the employee was trying his best but was simply unable to do the job.

The commission therefore finds that in week 10 of 2009, the employee was discharged by the employer but not for misconduct connected with his work within the meaning of § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 12, 2009
karnest . urr : 145 : 6 VL 1007.01

/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 indicated that he found both parties to be credible. The commission agrees. There was no real disagreement about the events that led to the ending of the employee's employment. The ALJ believed that the employer had not made the decision to discharge the employee at the time of the conversation. However, the commission believes, based largely on the employer's testimony, that it had decided, by March 3, that discharge was inevitable, and that during the conversation with the employee the parties came to a mutual agreement that his employment would end on March 3. As such, the commission finds that the employee did not quit but was discharged by the employer.


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uploaded 2009/09/01