TODD M GORSKI, Employee

TUCKAWAY COUNTRY CLUB, Employer

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

The employee worked for the employer, a country club, intermittently over a ten-year period, most recently as a waiter in the men's locker room. The employee's last day of work was March 1, 2009 (week 10).

In the last several months of his employment, the employee was working full-time at a bank, while also working a shift or two every few weeks for the employer. On March 1, 2009, the employee talked to the employer about his hours. The employee told the employer that he knew it was slow, but that it was okay with him not to be scheduled because he had another job. He was not scheduled for work thereafter.

The question to decide is whether the employee's separation from employment was a quit or a discharge.

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).

The employee did not tell the employer he no longer wanted to work for it or that he was unavailable for work. Rather, he stated that it was okay not to schedule him while things were slow because he had other employment. It was the employer that made the choice to remove him from the schedule and thereby terminate the employment relationship.

Having concluded that the employee was discharged, a secondary issue to resolve is whether his discharge was for misconduct connected with his employment. The employer did not contend that the employee was discharged for misconduct, and the evidence reveals that the employee was discharged because work was slow.

The commission, therefore, finds that in week 10 of 2009, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2009, provided he is otherwise qualified. He is not required to repay the sum of $10,925 to the Unemployment Reserve Fund.

Dated and mailed November 12, 2010
gorskit . urr : 164 : 1 VL 1054 : MC 625

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor prior to reversing. The commission's reversal is not based upon a differing assessment of credibility. Rather, the commission has reached a different legal conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.

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