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


DANA R WILBERN, Employe

POSTAL PRODUCTS UNLIMITED INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606776MW


On September 30, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason which would allow immediate eligibility for unemployment insurance. The employe filed a timely request for hearing, and hearing was held on October 22, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On November 2, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked almost three years as a data entry team leader for the employer, a manufacturer and seller of office products. Her last day of work was August 21, 1998 (week 34), following which she was unavailable for work due to the unexpected death of her husband. The commission concludes that the separation from employment was a suspension under Wis. Stat. § 108.04(1)(b)1., and not a quit under 108.04(7)(a), and so reverses in part the appeal tribunal decision.

The employe's husband was killed on August 22, in tragic circumstances. In addition to grieving for her husband and arranging for funeral and related matters, the employe also was to be present at court proceedings against the individual who had killed her husband. On Monday, August 24, the employe telephoned the employer's human resources manager and indicated she would not be able to come to work for a week or two, that her husband had died. The employe indicated she was not sure how long she would need off.

On September 8, the human resources manager telephoned the employe about the employe's plans to return to work. There had been a rumor that the employe was considering moving out of state in order to be near her family. The employe indicated to the human resources manager that she probably would not be moving, but that she still was not sure when she would be ready to come back. The employe told the human resources manager she would call her in the next day or two, when she was able to make a decision.

When the employer did not hear from the employe in the next two days, the employer started making arrangements to replace her on the assumption she was not planning to return to the employment. Then, when the employe did telephone on September 17 to indicate she would be able to return to work the following Monday, September 21 (week 39), the employer took the position that the employe had quit and the employer determined to keep looking for a replacement for her.

In finding the employe to have voluntarily terminated her employment, the administrative law judge reasoned that the employe had the responsibility to keep the employer better informed as to her status, and that the employe's failure to have done so was conduct inconsistent with an intent to maintain the employment relationship. As a general principle, it is true that an employe who does not keep his or her employer informed as to the employe's status, can be found to have engaged in conduct inconsistent with an intent to maintain the employment relationship. To make that finding in this case, however, gives insufficient weight to the circumstances confronting the employe. She was of necessity dealing with funeral matters and court proceedings against the individual who had killed her husband. Any failure on her part to have contacted the employer when the employer thought she would, must be attributed to those circumstances and not to any intent, implied or otherwise, not to return to the employment.

The more appropriate statute for the circumstances of this case is Wis. Stat. § 108.04(1)(b)1.; it provides that an employe is ineligible for benefits while the employe is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employe or by the employer or was terminated by the employer because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer. The circumstances of this case precisely fit this statutory provision. The employe suspended her employment with the employer because of the death of her husband and, when the employe no longer was unavailable for work and contacted the employer in order to return to work, the employer terminated the employe's employment by refusing to allow the employe to return to work.

The commission therefore finds that, in week 35 of 1998, the employe's employment was suspended by the employe because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1. but that, beginning in week 39 of 1998, the employe was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 39 of 1998, if she is otherwise qualified.

Dated and mailed: January 27, 1999
wilbeda.urr : 105 : 1  AA 220 VL 1001.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision because of a differing credibility determination from that made by the administrative law judge. Such is not the case here; the commission's factual findings are based upon the testimony of the employer. For the reasons stated in the decision, the commission simply concludes that those circumstances do not constitute a quit pursuant to Wis. Stat. § 108.04(7)(a).

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe originally told the employer that she would need a week or two off when she called on August 24. The employe did not call in two weeks and the employer had heard rumors that the employe might move out of town. The employer called the employe to determine when the employe was returning to work. The employe said she had court dates coming up and she would call the employer within two days. The employe believed she would be notified of the court days later on September 8. The employe testified that she had told the employer that she was not leaving town but "In the future I am thinking of moving out of town, but that won't be for a good while."

The employe did not call the employer back within two days. The employer needed the work done and assumed that the employe had quit. The employer had asked the employe to keep them posted. The employe had had a previous leave of absence while working for this employer but did not request a leave of absence.

I agree with the administrative law judge. While the death of the employe's husband was a tragic situation, there is nothing in the record to indicate why the employe could not have kept the employer posted on how long she would be gone from work. The employe agreed that the funeral arrangements were done in the first week she was off work.

I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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