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

VANESSA R LUSTER, Employee

A LIFE STYLE SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96604265MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed September 20, 1996
lusteva . usd : 132 : 1  VL 1025

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe did not voluntarily terminate her employment but was discharged and not for misconduct connected with her work.

The commission has previously dealt with situations similar to the case at hand. In Vickie J. Budd v. A Life Style Service, Inc., LIRC, May 10, 1996, the employer informed the employe at the time of hire that after eight weeks, if she was considered a good worker, the client might hire her. The client did eventually hire the employe. In that case, the commission found that the employe knew that if she wanted to remain a temporary worker for the employer she could have done so by refusing to be hired by the client. The commission found a quit based on the fact that the employe had the option of refusing the client's offer as the employer was willing to continue the employe's employment if she declined that offer. The commission concluded that the change in the employment status was ultimately the employe's decision. The commission reached a similar conclusion in Kathleen Vanden Berg v. Trinity Resource Corp., LIRC, December 26, 1995. In that case the employer again had a contract with its client allowing the client to hire the worker after the end of sixteen weeks. At the time of hire, the employe was informed that she would be working for sixteen weeks and advised that the client would consider hiring her if her services were satisfactory. The employe completed the sixteen weeks and was notified that the client would be hiring her. The commission again found that the employe quit her employment. The commission noted that the employer was willing to continue the employe's employment if she had not in fact been hired by the client and therefore it was the employe's decision to sever the employment relationship and accept the client's offer of work.

In this case, the employer testified that at the time of the original interview with the client it was understood that the client would hire the employe permanently. This was not, based on the record in this case, the kind of situation where it was uncertain whether or not the employer's client would ultimately hire the employe. Rather, it was understood from the beginning that she would be hired by the client with only the actual transfer date to be decided later. Unlike the prior cases, the testimony in this case did not establish that the employer was willing to continue her employment if she declined to be hired on a permanent basis by the client. The employer did not indicate that the employe could have continued working for it. Further, even if it were found that the employe could have continued working for the employer, there was no testimony that the employe was aware that she had that option. This distinguishes the present case from the prior cases decided by the commission.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


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