CRAIG L BASILE, Employee

ALLIS CARE CENTER, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2011, 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 times his week benefit rate which would have been paid had the quitting not occurred.

Dated and Mailed February 29, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review, the employee argues that he did not quit his employment. He maintains that the employer discharged him for raising safety issues about the facility and threatening to notify authorities. He points out that the employer conceded that he never said that he was quitting and that he in fact vehemently denied that he was going to quit on his last day of work. The employee also disputes that he was ever notified that the employer intended to extend his probation.

The central issue in this case is credibility. The employee maintained that he was never informed that the employer intended to extend his probation. He argues that the employer's witness's testimony was not credible, but that even by the manager's account of the dispute, it was the employer who ended the employment relationship. The employee explains that a clear, unambiguous declaration of an intention to quit is necessary and that the parties agree that the employee never made any such declaration.

The commission disagrees. The employer has consistently maintained that it considered the employee to have quit when he refused to sign the document extending his probation which the employer made a condition of his continued employment. After listening to both parties, the ALJ credited the employer's two witnesses' testimony that the employee was told that the employer wanted to extend his probation due to differing priorities about the employee's work and that the employee refused to work under those conditions. The commission accepts this credibility determination and concludes that the employee quit when he refused to continue working under an extended probation period.

An employee can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). When an employee has an opportunity to maintain the employment relationship but fails to do so, the separation is a quit. See, e.g., Gilkay v. Servicemaster of Stevens Point, UI Dec. Hearing No. 95002242WR (LIRC Sept. 28, 1995). An employee who has the last chance to act to preserve the employment relationship and unreasonably refuses to do so voluntarily terminates his or her employment. Beshears v. Int'l Cabling Systems, UI Dec. Hearing No. 00004185MD (LIRC Dec. 18, 2000).

In this case, the employer reasonably exercised its discretion in extending the employee's probation when it had continuing reservations about his performance. The employer's request that the employee sign an acknowledgement of that extension was also reasonable. The employee refused to do so and such conduct was inconsistent with continuing the employment relationship and amounted to a quitting of his employment.

Moreover, the employee did not have good cause for refusing to continue working under these conditions. This circumstance is analogous to employees whose employment ends when they refused to sign disciplinary notices. The commission adheres to its reasoning in Miller v. LIRC, No. 92-CV-2953 (Wis. Cir. Ct. Waukesha County Jan. 24, 1994) Court of Appeals, District II, Case No. 94-0940, January 25, 1995 (unpublished), and more recently in Burton v. Signicast Corp, UI Dec. No. 00603251MW (LIRC Oct. 23, 2000), that refusing to sign such an agreement is a quitting, and not with good cause attributable to the employer.

While the employee may have believed that the employer's action was unwarranted, it was his choice to end his employment rather than sign the agreement and continue working.

basilcr . usd : 178 : 9

cc: Allis Care Center - West Allis, WI
Law Offices of Robert M. Mihelich

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uploaded 2012/09/12