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

JUSTIN A OLSON, Employee

QUAD/GRAPHICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10607344MW


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. On February 25, 2011, the commission issued a decision modifying the ALJ's decision to find that the employee quit but not for a reason that would allow immediate benefit payment. The employee contacted the commission to point out an error in the memorandum opinion. The commission, pursuant to Wis. Stat. § 108.04(7)(c) sets aside its February 25, 2011 decision and takes this matter up on its own motion, on the basis of mistake, and issues the following decision.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for 13 months as a finishing technician for the employer, a printing operation. The employee's last day of work was June 28, 2010 (week 27).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On June 28, 2010, the employee was scheduled to work from 7:00 p.m. to 7:00 a.m. He failed to appear at work and failed to report an absence.

On June 29, 2010, the employee was scheduled to work from 7:00 p.m. to 7:00 a.m. He failed to appear for his shift at 7:00 p.m. At approximately 3:00 a.m. on June 30th, he contacted his supervisor to say that he had just been released from jail. The supervisor told him to check with Employee Services to find out his job status.

The employee was told that, under the employer's attendance policy, he was considered to have quit his job when he failed to appear for work for two consecutive days. The employee acknowledges that he received a copy of the employee handbook containing this policy.

The employee testified that he was aware of the employer's policy which provided that two no-call/no-shows would lead to termination. The employee testified that he was in jail because he was on a payment plan for three tickets he had and he failed to make his payments. The employee knew, when he stopped making payments, that he might be incarcerated as a result, and that his incarceration would result in his absence from work. In addition, the employee had been no-call/no-show on June 23, 2010. He was a no-call/no-show on May 19 and absent with notice on April 29. Finally he was no-call/no-show on April 15, and on April 16. He had received two warnings that informed him he could be discharged as a result of his absences.

The commission concludes that the employee in this case, acted in a manner which was inconsistent with the continuation of the employment relationship, thereby quitting. The employer had a policy, of which the employee was aware, that two days of no-call/no-show, would be considered a quitting. The employee failed to make required payments on tickets he had received with the foreseeable result that he was incarcerated. The employer's policy in this case was that the worker was not required to provide personal notice so the employee could have had his girlfriend call in his absences, as she had done on some past occasions. The employer's shift supervisor would also have accepted a collect call. The employee had no reasonable explanation for failing to give notice of his absences and made no attempt to notify the employer until the third day when he was released.

Certainly not every instance of two consecutive no-call/no-shows will be considered a quitting, even if the employer's policy provides that such is the case. In a situation where the employer alleges that the employee constructively quit, the commission will carefully evaluate all the facts and circumstances in each case to determine the employee's intent. However, in this case, the employee knew of the employer's policy, failed to make any effort to call in to inform the employer he would be absent, had been warned about prior no-call/no-show absences, and was absent for invalid reasons. The employee's failure to take any reasonable steps to preserve the employment relationship amounted to a quitting.

The employee did not demonstrate that his quitting was with good cause attributable to the employer or for any other reason that would allow immediate benefit payment.

The commission therefore finds that, in week 27 of 2010, the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment.

DECISION

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2010, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and Mailed March 11, 2011

VL 1007.05 : PC 713

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to reflect its determination that the employee quit his job with the employer.

The employee explains in his petition for commission review that the employer told him he was discharged but mentioned nothing about excessive absence. However, the department, not the employer, makes a determination based on the facts of the case as to whether the ending of an employment relationship is a quit or discharge. The employee further states that the only issue on the hearing notice was Wis. Stat. § 108.04(7)(a) and as such, the employee was not prepared to explain his absences. The employee states that he was unable to recall at the hearing, the reason that he missed work on April 15 and 16, 2010. The employee states that he now remembers that he was absent as a result of a work injury. Regardless of the reason for his absence, the employee was aware that he had attendance warnings in the past and that the employer would consider two consecutive days of no call/no show to be a quit. This is true even if all of his prior absences were for medical reasons. Further, while the employee indicated that his prior absences were generally for medical reasons, he did not explain why he was unable to call the employer to report his absences.

The determination in this matter found that the employee quit but not for a reason that would allow the payment of benefits. The employee appealed that determination and the department, on October 8, 2010, sent the employee a hearing notice for his October 20, 2010, hearing which indicated that the potential issues for the employee's hearing were whether the circumstances surrounding the ending of the employee's employment disqualified him from receiving benefits and whether he was able to work and available for work. It also referenced Wis. Stat. § 108.04(1)(b), (2), (5), (5g) (7) & (7m), as well as certain chapters of the Wisconsin Administrative Code. Thus, Wis. Stat. § 108.04(5g) was specifically referenced in the hearing notice. The employee should also have been aware that his quitting could be a potential issue because the hearing notice specifically referenced Wis. Stat. § 108.04(7) a statute entitled Voluntary Termination and because the determination found that he quit.

The employee also indicates that he did not quit and he proved this with a document from the plant manager indicating that he was dismissed. However, the employee was no call/no show for two days in violation of the employer's policy and knew or should have known that the employer would consider him to have quit and that his actions would end the employment relationship. It was the employee's failure to contact the employer that resulted in the ending of the employment relationship and for unemployment insurance purposes the employee quit.

The employee also references a separate appeal tribunal decision, Hearing No. 10607345MW, which found that the employee withdrew his request for a hearing pursuant to Wis. Stat. § 108.09(4)(a). The underlying issue in that case was whether the employee was called on with due notice by his current employer to perform work actually available but was unavailable for that work pursuant to Wis. Stat.
§ 108.04(1)(a)2. The digital recording of the hearing reflects that the employee withdrew his request for hearing, the employee said he was not contesting that he missed work on June 28 and June 29, 2010. The employee agreed that there was no need for a hearing on that issue and the ALJ said he would treat that as a withdrawal. Therefore, pursuant to Wis. Stat. § 108.04(4)(a) the ALJ's decision refers to his withdrawal.

cc: Santo Galati


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