KENNETH W MARTIN, Employee

CABLECOM, Employer

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:

The employee worked for almost 3 years as an OSP technician for the employer, a telecommunications business. His last day of work was May 6, 2010.(week 19) The employee did not appear for work the following week. (week 20)

The employee's last day of work was May 6, 2010. He was arrested and incarcerated on May 8, 2010 for driving while intoxicated and was unable to make other than collect calls until he was released on May 13, 2010. He did not appear at the employer's until May 17, 2010. The employer has a written policy that says, "Absences of 2 consecutive working days without notification to [the employer] will be considered a voluntary resignation." When the employee failed to call or show up for work during week 20, the employer considered the employee to have quit.

The issue to be decided is whether the employee's separation from employment was a quit or a discharge.

The concept of voluntary termination is not limited to the employee who says, "I quit." Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119, 287 N.W.2d 763 (1980). Rather, 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, 94 Wis. 2d at 119; Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

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 this case, the employee engaged in conduct which he knew could result in his incarceration and, thus, his unavailability for work. Moreover, the employee failed to provide the employer with notice of his absences. The employee's actions were inconsistent with a desire to continue the employment relationship, and the commission concludes that the employee effectively abandoned the job when he was absent eleven consecutive days without notice to the employer.

Having concluded that the employee quit, the next question to decide is whether his quitting fell within any statutory exception permitting the immediate payment of benefits. The employee's quitting under the circumstances described above does not fall within any of the enumerated exceptions.

The commission therefore finds that in week 20 of 2010 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 21 through 38 of 2010 in the total amount of $6,534, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of the overpayment.

"Departmental error" is an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e). In this case, benefits were paid to the employee because the appeal tribunal chose to disregard controlling case law. In similar cases, the commission has held that an extended absence from work due to incarceration where the employee was at fault was disqualifying either as a discharge for misconduct or a quit. Under these circumstances, the overpayment was caused by a departmental error, and recovery of the overpaid benefits must be waived.

The commission, therefore, finds that waiver of benefit recovery is required under Wis. Stat. § 1088.22(8)(c), because the overpayment was the result of a department error and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(d).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2009, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $6,534 to the Unemployment Reserve Fund. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed October 29, 2010
martike . urr : 178 : 1 VL 1001 . 09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not confer with the administrative law judge about witness credibility but makes its decision as a matter of law.

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