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

JOHN L LECLAIR, Employee

COUNTY OF FLORENCE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402065AP


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 Wisconsin county, for a year and two months as a social worker. His last day of work was May 1, 2009 (week 18).

The employee was hired in March of 2008 on the condition that he get his social work certification within a year. He was advised that if he did not get the license within a year, his employment would be terminated. The employer subsequently learned that the employee would have to take three classes to qualify for his license, so it extended the one-year deadline in order to give him time to complete the coursework. On July 28, 2008, the employer notified the employee by letter that it was giving him fourteen months or until May 3, 2009 to complete the certification requirements.

The employee completed his coursework and was eligible take the social work examination as of April 7, 2009. On April 16, the employee's supervisor gave the employee a letter from the Wisconsin Department of Regulation & Licensing notifying him that he was able to take the exam, and told him he needed to schedule it. The employee's supervisor did not tell the employee that he needed to do so by any specific date.

On April 23, 2009, the employer's director of human services asked the employee if he had scheduled the examination yet. The employee stated he had not. No more was said about the matter. The human services director did not remind the employee that the examination must be completed by May 3 and did not mention that he would be out of a job if he did not satisfy the requirements by that deadline.

On April 28, 2009, the employer learned that the employee had not yet scheduled the examination and determined that he would not be able to complete the requirements for his social work certification by May 3. The employer therefore notified the employee that he was discharged effective May 1.

Later that day the employee called and learned that the earliest he could take the test would be May 9, 2009. The employee ultimately took and passed the test on May 16.

The question to decide is whether the employee quit or was discharged and whether he is eligible for benefits as a result of that separation.

The key element to determining whether an employee voluntarily quit is the employee's intent. 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." The courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

Both parties take the position that the separation was a discharge, not a quit, and the commission agrees. The employee knew he needed to obtain a social work license and made attempts to satisfy that requirement. In the year preceding the separation the employee completed the necessary coursework on his own time and at his own expense. The only step left to obtaining the license was satisfactory completion of an exam. The employee stated that, while he knew he was to complete the requirements for certification in May, he was not aware of a specific May 3 deadline. The employee was notified of the May 3 deadline in a letter dated July 28, 2008, nearly nine months earlier, but that date was not mentioned thereafter. The employee talked to the employer on April 16 about scheduling the exam, and again on April 23, but the employer made no mention of the May 3 deadline. The employee was responsible for obtaining his social work license in a timely manner, and was neglectful in failing to verify the deadline and to promptly schedule the examination. However, the commission is unpersuaded that after expending the time, money, and effort to complete the coursework and become certified to take the test the employee would have deliberately disregarded the deadline by which he was to do so. The commission believes that the employee's conduct, while negligent, was not so inconsistent with a continuing employment relationship as to evince an intent to quit.

Having concluded that the separation was a discharge, the next question to decide is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employee was discharged for failing to obtain his social work license by the deadline imposed by the employer. The employee should have been more diligent about ensuring that he completed all licensing requirements prior to the deadline. However, it is clear that the employee was making efforts to obtain the license and the commission is unpersuaded that he deliberately ignored a deadline of which he was aware. The employee's failure to schedule the examination in a timely fashion did not evince wilful misconduct.

The commission, therefore, finds that in week 18 of 2009, the employee was discharged and not for misconduct connected with his employment, 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 18 of 2009, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 28, 2009
leclajo . urr : 164 : 5 VL 1007

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart.

cc: Florence County HSD

 


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