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

DONALD S. EMMERICH, Employee

SOUTHPORT MARINA DEVELOPMENT
COMPANY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10611567RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2010, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four time the employee's weekly benefit rate which would have been paid had the quitting not occurred.

The employee is required to pay $5,082.00 to the Unemployment Reserve Fund. The employee will receive, or may have already received, a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of the FAC benefits that he must repay, which notice is incorporated in and made a part of this decision.

Dated and mailed July 22, 2011
emmerdo . usd : 102 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee petitioned the adverse appeal tribunal decision and alleged that he did not voluntarily terminate his employment. 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).

In this case, the employee deliberately engaged in conduct which he knew could result in his incarceration and, thus, his prolonged unavailability for work. While the employer may have been aware of the employee's probationary status and the employee's girlfriend may have informed the employer of his whereabouts, it was the employee's own misdeeds that rendered him unavailable for work. Despite the employee's assertion in his petition for commission review that he did not intend to quit, his actions were inconsistent with the continuation of the employment relationship. The employee knew or should have known that an unanticipated, protracted absence without a valid reason would lead to the separation of his employment regardless of his lack of prior attendance issues. The commission, therefore, concludes that the employee was the moving party in the separation when, in effect, he abandoned the job. See, Craigg v. Red Lobster & The Olive Garden, UI Dec. Hearing No. 01603522MW (LIRC August 23, 2001).

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 actions leading to the employee's incarceration, although off-duty conduct, were avoidable. Furthermore, it was foreseeable that the employee's conduct leading to incarceration could have prevented him from reporting to work in a consistent and timely fashion. The employee's quitting under the circumstances described above does not fall within any of the enumerated exceptions.


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uploaded 2011/09/13