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


NANCY A SESSIONS, Employe

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201411EC


On September 5, 1998, the Department of Workforce Development issued an initial determination which held that the employe's employment was terminated because she was unable to perform suitable work otherwise available with the employer. The employer filed a timely request for hearing on the adverse determination and hearing was held on October 12, 1998 in Eau Claire, Wisconsin before a department administrative law judge. On October 15, 1998, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. The employe filed a timely petition for 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, and after consultation with the administrative law judge regarding credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two months as a laborer for the employer, a furniture manufacturing business. Her last day of work was July 15, 1998. On or about August 19, 1998 (week 34), the employer's human resource supervisor told the employe that the employer could not keep the employe's position open any longer. The commission concludes that the resulting separation from employment was a discharge by the employer, not for misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

The employe had been off work due to problems with her knee. On July 24, 1998, the employer's human resource supervisor sent a letter to the employe which instructed the employe to do two things. It first instructed her to contact the employer within 24 hours of receipt of the letter. It also warned her, but without giving a time deadline, that she would be discharged should she fail to provide proper documentation for her absence.

The employe saw her doctor on July 28. He arranged for her to see a knee specialist, and indicated she might need an MRI on her knee. He obtained an appointment for her for August 6. The employe telephoned the employer's human resource supervisor later that day (the 28th), and left on her answering machine the information the employe had obtained from her doctor. The employe also telephoned the designated representative of the employer's worker's compensation carrier to let her know about the employe's subsequent appointment.

The employe also telephoned the employer on July 31 and on August 6. On July 31, the employe spoke with the employer's worker's compensation claims manager. On August 6, the employe spoke with the human resource supervisor.

The employe had an MRI on August 13, followed by knee surgery September 2. In the meantime, the employe spoke with the employer's worker's compensation claims manager again on August 19, at which time the claims manager told the employe the employer could not keep her job open for her.

The administrative law judge found that the employe, by not promptly submitting medical slips to the employer, engaged in conduct inconsistent with an intent to continue the employment (which is a quit pursuant to Wis. Stat. § 108.04 (7)(a)). The commission disagrees. First, the employer's July 24 letter imposed no deadline for the employe's submission of medical reports to the employer. Second, and more importantly, the employe kept in regular contact both with the employer and with the employer's worker's compensation insurer as to the employe's status. This is not conduct inconsistent with an intent to continue the relationship, so the employe did not quit her employment in this case. Rather, the separation occurred when the employer's human resource supervisor, on August 19 (week 34), told the employe it could not hold her job open for her any longer. (1)   The separation thus was at the impetus of the employer and, as such, was a discharge and not a quit. Given the employe's contact with both the employer and the employer's worker's compensation carrier, the commission also concludes that the employe did not commit misconduct in this case. The commission therefore finds that, in week 34 of 1998, the employe was discharged but not for misconduct for unemployment insurance purposes, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance if she is otherwise qualified.

Dated and mailed: January 22, 1999
sessina.urr : 105 : 3  VL 1007.01  VL 1001.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: When the commission conferred with the administrative law judge, the administrative law judge indicated that he had the impression the employer was being truthful, but that he decided the case based upon the employe's alleged failure to have complied with the directive of the July 24, 1998 letter. For the reasons stated in the decision, the commission cannot conclude that the employe failed to comply with the directives of that letter. More importantly, the employe's telephone records show regular contact with the employer that the employer's witnesses denied. The employer's witnesses alleged they did not hear from the employe from the time they sent the July 24 letter until August 19. Based upon the employe's telephone records, the claims of the employer's witnesses are not credible. This credibility findings disposes of that portion of the dissent which relies upon the testimony of the employer's witnesses as to the timing of the employe's contacts with the employer.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The letter the employer wrote to the employe on July 24, 1998 asked the employe to contact the Human Resources office within 24 hour receipt of this letter. The letter warned the employe that failure to have the proper documentation for her absence from work would cause her to be terminated.

The employe did not testify that she called the employer prior to July 28 in response to the employer letter. Even by the employe's own testimony she did not talk to Sandra Koval on July 28. She was told again to talk to Sandra Koval. The employe says she left a message for Koval which said she had an appointment with a specialist and she wanted to know if she had been discharged. The employer got a slip dated 7/21 from the Midelfort Clinic that said to continue current restrictions for 7 days and the doctor would reassess in 1 week. The problem with this slip is that the employer did not receive the slip until August 20. The employe did not report her absences for July 27 and 28 to the employer. The employe last worked for the employer on July 16. She gave notice of absences on July 20, 21, 22 and 23. The first day she reported she had car trouble. The second day she called in sick. The following two days she said that the doctor was to get back to her. Koval did not hear from the employe until August 20 but by then she was no longer employed by the employer.

The employe's evidence that she called the workers compensation carrier does not help her because the employer was clear that she was to called the Human Resources office. The majority cites as evidence that she was discharged but not for misconduct that the workers compensation carrier informed her that the employer could not keep her job open when the employe talked to the carrier on August 19. The separation had occurred earlier when the employer filled a change of status report when the employe had been gone for a week with no notice. While this case could be resolved as misconduct, I am willing to agree with the administrative law judge that the employe's conduct was inconsistent with maintaining the employment relationship. I believe the fact that the employer did not place a specific deadline for the receipt of the medical excuse is irrelevant because the employe did not even call the employer in a timely fashion and she did not talk to Koval until August 20. The employer is not required to track down the employe to find out why she is not at work. The employer placed the burden on the employe to contact Human Resources and she did not do so in a timely fashion.

For these reasons, I would affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

 

cc: ASHLEY FURNITURE INDUSTRIES


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Footnotes:

(1)( Back ) Contrary to the assertion by the dissent, it was not the employer's worker's compensation carrier that informed the employe on August 19 that the employer could not keep her job open; rather, as indicated above, it was the employer's human resource supervisor.