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

JEANINE BEZIE, Employee

SENDIK'S, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09607377WK


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 approximately eight years and four months, most recently as a delicatessen assistant manager, for the employer, a retail business. Her last day of work was June 29, 2009 (week 27), when she quit the employment.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

On June 29, 2009, the employer informed the employee and her co-workers that, as of August 28, 2009, the workplace would be closed for business and all the workers would be laid off. The employee completed her work duties that day. That evening she telephoned the employer and left a voicemail message informing it that she quit effective immediately. The employee quit because the store was closing and she was not asked to work at another location.

This case involves what is called as a reverse Story situation. Story v. Thrift Drug Company of Pennsylvania, UI Dec. Hearing No. 61733 (LIRC May 18, 1967) provides that when an employee notifies an employer that she plans on quitting at a designated time in the future, and the employer discharges the employee prior to the effective date of that quitting, the employer has accelerated the employee's date of quitting and the employee is eligible for benefits until the effective date of quitting. In a reverse Story situation, when an employer informs the employee that she is going to be discharged at a designated time in the future, and the employee quits prior to that time, the employee has accelerated her last day of work and is ineligible for benefits until the effective date of discharge, but eligible thereafter. Prior commission decisions have followed such reverse Story analysis. See, e.g. Jozwiak v. Dental Associates Dental Clinic of Marshfield SC, UI Dec. Hearing No. 92002305WR (LIRC Dec. 18, 1992) and Herth v. Perry Creek Cranberry Corporation, UI Dec. Hearing No. 89003939LX (LIRC Jan. 10, 1991). The time between the employee leaving and the effective date of discharge is treated as "work available." That is, the employer had work available for the employee but the employee did not perform that work.

The commission therefore finds that in weeks 27 through 34 of 2009, the employee missed more than 16 hours of work in each week, that the employer had available for her, within the meaning of Wis. Stat. § 108.04(1)(a)2.

The commission further finds that in week 35 of 2009, the employer discharged the employee but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 27 through 34 of 2009, but eligible as of week 35 of 2009, if otherwise qualified.

Dated and mailed February 25, 2010
bezieje : 132 : 5 : VL 1007.15

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ 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 employer did not appear at the hearing. The employee's testimony was unrebutted.


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