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

BRAD L WEBB, Employee

JFC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09202886EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for the payment of benefits as of week 28 of 2009, if otherwise qualified.

Dated and mailed March 29, 2010
webbbra : 150 : 5 MC 605.091 VL 1001.09 VL 1007.05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee's absence from work, due to a probation hold, constituted a voluntary termination of employment. Generally, the commission has held that a separation resulting from a lengthy absence due to incarceration will be considered a discharge if the employee made a reasonably diligent effort to keep in touch with the employer during this absence and a quit if he did not. Cyprian v. Hondo Inc., UI Dec. Hearing No. 05604927MW (LIRC October 6, 2005) and Graham v. Emmpak Foods Inc., UI Dec. Hearing No. 04610974MW (LIRC March 15, 2005). In Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003), the commission found a discharge where the employee missed four days of work, and called the employer twice during this time period. In Lee v. Universal Foods Corp., UI Hearing No. 90-003723 (LIRC Nov. 20, 1990), the employee was found to have been discharged for missing five consecutive days of work due to his incarceration and his contacts with the employer and attempts to contact the employer during this period showed he had no intent to quit.

In this case, the employee was absent Monday through Thursday, June 29 through July 2, 2009 due to his incarceration. He notified his supervisor on Monday before his shift of his situation and that he would be absent for at least a few more days while his probation officer investigated the matter. While the supervisor argued that he directed the employee to notify him daily, the ALJ did not credit this assertion. Similarly, the commission credits the employee's testimony that he was not so told and believed that he properly notified the employer of his absences. Under these circumstances, the commission finds that the employee's statement that he would be absent for a few days was enough to maintain the employment relationship. It was the employer's decision to terminate it and, thus, he was discharged.

In cases where the commission has found misconduct based on incarceration, it was able to affirmatively find that the employee's actions or failures to act caused a chain of events which created circumstances which made him unavailable for work and he was therefore the defaulting actor. Brian W. Schweikert v. Ganton Technologies Inc., UI Dec. Hearing no. 91606281 (LIRC Mar. 24, 1992); Love v. Emmpak Foods Inc, UI Dec. Hearing No. 99604845MW (LIRC Jan. 27, 2000).

In this case, the employee's intentional violation of the terms of his probation against drinking resulted in this isolated incident of a four day absence. Strictly under the absence portion of the employer's policy, the employee was allowed eight occurrences. Thus, without prior warning, the commission affirms the appeal tribunal decision finding that the employee's absences did not rise to the level of misconduct.

The appeal tribunal decision is affirmed as written.

cc: Gold N Plump (Arcadia, WI)


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