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

KATHY E LARSON, Employee

PLATINUM DISC LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11000856MW

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about five months as a floater for the employer, a distributer of media discs. Her last day of work was on or about August 20, 2010 (week 34).

The employer's rules provide that an absence of two days without notice amounts to a quit. The employee was absent due to illness on Monday and Tuesday, August 23 and 24, 2010 (week 35). The employee was suffering from a migraine headache. The employee was in bed. The employee does not have a house phone and her husband, who was absent from the home for a few days, took their cellular telephone with him. The employee would have had to drive down the road to contact a neighbor or go to town to use a telephone. The employee, given her condition, did not feel comfortable driving her car. When she returned to work on Wednesday, August 25, 2010 (week 35), she was informed that her employment terminated as a result of being absent two days without notice.

The issue presented is whether the employee terminated the work with the employer.

Wis. Stat. § 108.04(7)(a) provides that a worker who terminates his or her employment will have benefits suspended until four weeks have elapsed since the week of quitting and until wages of four times the applicable weekly benefit rate are earned in covered employment. The only exceptions are those stated in the law. A worker may quit by giving notice of quitting, or by word or manner of action which is inconsistent with a continuation of the employment relationship.

The employee in this case was absent because she was suffering from a migraine. Thus, the employee was absent for a valid reason and therefore the commission cannot infer that she intended to quit because she was absent for two consecutive days. The employee never gave a formal notice of quitting. The commission would have to infer the intent to quit her job from her failure to notify the employer of her two consecutive absences. The employee explained that she did not give notice because she did not have access to a telephone and lived in an area which would have required her to drive in order to make a telephone call. The employee was ill and did not feel comfortable driving. It is possible the employee could have made a greater effort to contact the employer and give it notice of her absences. However, her failure to do so, under the circumstances presented in this case, did not demonstrate her intention to sever the employment relationship. The employee had valid reasons for failing to report to work. In addition, the employee's failure to call the employer to report her absences, given that she did not have access to a telephone and would have been required to drive some distance to make a call to the employer, was not so egregious as to amount to misconduct connected with her work.

The commission therefore finds that in week 35 of 2010, the employee did not quit her work with the employer but rather, was discharged by the employer but not for misconduct connected with her work 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.

Dated and mailed August 19, 2011
larsoka . urr : 145 : 5 UW 910 : UW 975

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing prior to reversing his decision. The ALJ indicated that he did not accept the employee's explanation for failing to call the employer as plausible. While he agreed migraine headaches could be incapacitating, he believed the employee should still have been able to give notice of her absence. The employee's testimony about her reason for not giving notice was undisputed. The commission found her testimony to be plausible and does not believe that her failure to give notice to the employer, under these circumstances, was so inconsistent with the continuation of the employment relationship as to demonstrate her intention to quit her job.


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