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


DENISE M RAMIREZ, Employe

ELKHORN INN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201657EC


On October 29, 1998, the Department of Workforce Development issued an amended initial determination which held that the employe had been discharged for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on November 23, 1998 in Eau Claire, Wisconsin before a department administrative law judge. On November 30, 1998, the administrative law judge issued an appeal tribunal decision holding that the employe quit her employment, but not for a reason allowing for immediate eligibility for unemployment insurance. 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 in this case worked a little over a year for the employer, a restaurant/hotel concern. A separation from employment occurred on October 8, following the employe's refusal to agree to work a double shift on October 10. The administrative law judge found that the employe's refusal to work the double shift was a quit by the employe; the commission concludes that the separation was a discharge by the employer, not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe's last day of work was October 2, 1998. She next was scheduled to work on October 6, 1998 (week 41), from 2:30 p.m. to 9 p.m. Sometime that morning, the employe's boyfriend notified the employer that the employe would be unable to report to work that day, implying that she was ill. The employer's manager was concerned about the employe's health, and went to the employe's residence twice that day but was unable to contact the employe at those times. Later that evening, the manager did speak with the employe and indicated that she understood the employe's inability to work that day.

On the following day, the manager telephoned the employe. She explained that the employer had lost business due to her absence the previous day and requested that she work a double shift on October 10, 1998 (week 41) to make up the hours missed. The employe initially agreed. The employe had been scheduled to work from 6:30 a.m. to 2:30 p.m. The double shift would have required her to work from 6:30 a.m. to 9:30 p.m. The employe also was scheduled to work on Sunday, beginning at 6:30 a.m.

On October 8, 1998 (week 41), the employe telephoned the manager and stated that she would not work a double shift on October 10. She stated that she would work her scheduled shift that afternoon and the scheduled shift on October 10, but would not work a double shift on October 10. The manager stated that if the employe refused to work the extra shift, she would no longer have a job. The employe replied that she did not intend to quit her employment, but that she would not work the double shift. The manager told her she would call her back. A short time later, the manager telephoned the employe and told her that she was discharged.

The first issue is whether the separation from employment was a quit by the employe or a discharge by the employer. The commission concludes that it was a discharge by the employer. The employe did not intend to quit her employment, but merely not to work a shift she originally had not been scheduled for. The separation also was at the impetus of the employer: it was the employer who threatened the employe with loss of employment and then actually discharged the employe.

From this point, the issue is whether the employe's failure was misconduct for unemployment insurance purposes. That standard is intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission concludes that the employe's failures do not meet this standard. The dispositive factor is the number of hours the employe would have had to work on the weekend in question. On Saturday, she would have had to work from 6:30 a.m. straight through to 9:30 p.m., approximately 15 hours. Then, after only nine hours off, the employe would have had to work a shift on Sunday beginning at 6:30 a.m. This would be approximately 23 hours of work in a 32-hour period of time. Given this, the commission cannot conclude the employe's refusal to work the shift was a substantial disregard of the employer's interests, notwithstanding the employe's initial agreement to work the second shift on Saturday. The employe's testimony was unrebutted that the employer could have asked someone else to work the second shift on Saturday. With regard to the employe's October 6 absence, finally, that does not factor into the analysis of the discharge since the employer specifically told the employe that she accepted the employe's inability to have worked on October 6.

The commission therefore finds that, in week 41 of 1998, the employe was discharged but not for misconduct connected with her employment, 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: March 2, 1999
ramirde.urr : 105 : 6   MC 626 MC 640.12

/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. The commission does not disagree with the administrative law judge's factual findings. Rather, the commission believes those facts indicate a discharge by the employer and not a quit by the employe.

Pamela I. Anderson, Commissioner, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe quit when she changed her mind about working a double shift on October 10. The employe had not worked on October 6 during her scheduled shift. She did not call but her boyfriend told the employer that she would not be in. The employer did not have anyone to cover the cooking on her shift and so closed the restaurant that evening. The employer asked the employe to work a double shift on the tenth to help make up her hours. The employe agreed to work the shift but later called and told the employer that she would not work the double shift.

The employer said that the employe told her that the employe did not like the change in management. The employer had hired a new manager. The employe believed that the employer should have given the position to the employe or Ms. Neumark. The employer explained to her why she was not hired. The change had not yet taken place but the employe was unhappy about the change. The employer testified that if she had given a good reason as to why she did not want to work the double shift, I may not have fired her.

While the employer used the words fire her, the employer really gave the employe a choice to work the double shift and remain employed or not work the double shift and lose her job. The employe was the person who made the decision to sever the employment relationship so it was a quit by the employe. I do not believe that the quit fell into any of the exceptions which would allow for the immediate payment of benefits.

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

Pamela I. Anderson, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]