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


PIERRE A COFFER, Employe

SHERATON MILWAUKEE NORTH, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602487MW


On March 27, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 9 of 1998 the employe was discharged and not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On May 26, 1998, the appeal tribunal issued a decision which reversed the initial determination to find that the employe voluntarily quit, and not for any reason which would allow the immediate payment of benefits. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a hotel, for approximately seven years as a line cook. His last day of work was February 25, 1998 (week 9).

The employe was scheduled to work three mornings and two evenings each week. He was paid $8.55 per hour. On October 16, 1997, the employe notified the executive chef that he no longer wished to work evening shifts. The employer agreed to find someone else to work the employe's evening shifts, but asked that the employe continue working those shifts until it could do so. The employe was amenable to this arrangement.

In December of 1997 the employe expressed an interest in picking up additional morning shifts in the pantry, where a full-time worker had just quit, and was assigned some extra shifts. Although the employer had attempted to hire a part-time replacement for the employe, it had not yet found anyone that worked out, so the employe continued to work his two evening shifts.

In January of 1998 the employe spoke to the employer again about going to day shifts only. The employer assigned another cook to cover one of the employe's evening shifts and gave the employe an additional day shift.

On or about February 25, 1998, the employer found someone to take over both of the employe's evening shifts. However, this individual wanted to work full time. The employer decided to let the new worker take over all of the employe's hours, including his day-time hours. That day the executive chef told the employe he was being relieved of his line cook duties because the employer had hired a full-time replacement to cover his hours. The employe was then directed to speak with the general manager, who told him that there was work available as a van driver at a pay rate of $5.00 or $5.25 per hour, plus tips. The employe stated that he would be willing to consider that position. However, the general manager indicated that he would need to check with a van driver who was returning to work to make sure there was not going to be any conflict.

On March 6 the employer left a message for the employe to contact it. On March 11 the employe notified the employer that he would not accept a van driver position because it did not pay enough. The employer then told the employe he could work in housekeeping for $6.25 or $6.50 an hour, but the employe rejected that position on the same basis. The employer considered the employe to have quit at this point.

The question to decide is whether the employe quit or was discharged and whether he is eligible for benefits based upon that separation from employment.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show 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). The evidence does not support a finding that the employe voluntarily quit in this case.

The employe requested that he no longer be scheduled on the evening shift. A request for a schedule change does not evince an intent to quit. Further, the employer agreed to take the employe off the evening shift and did not explain to him that this change in schedule might cost him his job. Had the employe been given the option of continuing to work his evening shifts or losing his job entirely, he may well have selected the former. However, he was given no such choice and was simply notified that he had been replaced. Moreover, while the employer mentioned the possibility of other work for the employe, it did not actually offer the employe another position until a few weeks later, at which point the employment relationship had already been severed at the employer's behest.

Having concluded that the employe was discharged, a secondary issue to resolve is whether the discharge was for misconduct connected with his employment. At the hearing the employer argued that the employe had threatened not to work evening shifts if he was scheduled. However, the employe never actually failed to work any assigned shifts and was not discharged for this reason. The employe was discharged after requesting a schedule change, a matter which does not amount to misconduct.

The commission therefore finds that in week 9 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 9 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: January 11, 1999
coffepi.urr : 164 : 3  VL 1007

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Although the commission did confer with the administrative law judge regarding witness credibility and demeanor, its reversal is not based upon any differing credibility assessment. Rather, the commission has reached a different legal conclusion after applying the law to essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY BARRY L CHAET
BECK CHAET MOLONY & BAMBERGER SC


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