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

SEAN A RETI, Employee

COLLECTION ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10605760MD


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 and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for six weeks as a sales associate for the employer, a collection agency. His last day of work was January 26, 2010 (week 5), with his employment ending on that day.

The employee had been unemployed over ten months when he was hired by the employer. He was hired under a contract for an annual salary of $30,000 plus commissions. The employee also had a right to a $10,000 draw against his commissions.

On January 25, 2010, the employee spoke with his direct report, who was also a co-owner, and expressed concern about meeting his financial obligations. He stated that he needed $100,000 annually, wasn't sure he could make that much and wasn't sure he wished to continue working. He sarcastically commented that he would probably be better off to stay home with his child and collect unemployment. After the discussion, the employee continued to work and set up two meetings for the following week.

On January 26, 2010, the employee met with the employer's majority owner, who asked the employee about his situation, and the employee said, "if I were you, I would fire me." The owner said that it looked like it wasn't working out, and he asked the employee to turn in his key, his expense report and to clean out his desk. The employee did not return to work thereafter and filed a claim for unemployment insurance benefits.

The issued to be decided is whether the employee quit or was discharged; if he quit, whether his quitting fell within an exception to allow for immediate benefit payment, if he was discharged, whether his discharge was for misconduct connected with his employment.

The ALJ found that the employee had been discharged; the employee was the moving party in the termination of the relationship and his actions seemed to "set up a situation in which he would be fired." The commission disagrees. In particular, where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge one looks for the party that initiated the ultimate separation. Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000). The statutory concept of voluntary termination is not limited to the situation where an employee says, "I quit," and may, in fact, include situations where the employer has discharged the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). Yet, in order for a voluntary termination to be found, the employee's actions must evince an intent to leave the employment, with such intention indicated by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship. Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953).

In Rose v. Security Personnel Inc., UI Dec. Hearing No. 07602097MW (LIRC July 30, 2007), the commission found that neither an employee's words nor her actions were so inconsistent with the continuation of the employment relationship as to constitute a quitting where the employee may have referenced quitting at two meetings but did not actually give notice of quitting at either.

Also, in Evans v. Yunker Industries Inc., UI Dec. Hearing No. 08000745JV (LIRC May 23, 2008), the commission found a discharge in a more ambiguous situation arising from an employee's refusal to attend an EAP program and statement that the employer might as well fire her instead of imposing the discipline and last chance agreement; the commission found that the employee was not explicitly refusing to work or quitting even though she clearly disagreed with the discipline to be imposed and, when the human resources supervisor responded, "Okay" and then discussed the collection of the employee's belongings at work, the employee was discharged.

In the current case before the commission, the commission conducted a credibility conference with the ALJ to determine whether any demeanor evidence played a role in his finding. The ALJ explained that no demeanor impressions played a role in his finding and the commission bases its decision regarding the nature of the separation of employment upon the language used by the parties. The employee's language certainly expressed a poor attitude toward the employment terms that he just agreed to after a period of lengthy unemployment but it does not evince any intent to sever the employment relationship, especially given his planned continuation of work by setting up of appointments for the next week. Instead of indicating an intent to sever the employment relationship, the employee left the choice of the ultimate separation to the employer and the majority owner decided to end the employment. Thus, the employee was discharged.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute. Boynton at 260.

In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that her performance is not satisfactory and give her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979). While the employer may have certainly made a valid business decision in deciding to terminate the employment given the employee's comments on his last two days of work, it has not established that the discharge was for misconduct connected with his employment within the meaning of the above.

The commission therefore finds that in week 5 of 2010, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but was discharged and his discharge was not for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified. There is no overpayment based upon this decision.

Dated and mailed December 23, 2010
retisea : 150 : MC 625 ; MC 626 ; VL 1007 . 01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: As mentioned, the commission conferred with the administrative law judge prior to reversing the appeal tribunal decision. The ALJ did not impart any demeanor impressions. The commission's reversal is due to the commission's reaching a different legal conclusion upon essentially the same facts as found by the administrative law judge.


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