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


THOMAS J LAWRENCE, Employe

SCHULTZ SAVO STORES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401229SH


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 employe has a full-time job, from 3:30 p.m. until midnight, Mondays through Fridays. In addition to his full-time employment, he works occasional Saturdays as a driver for the employer. The employe calls the employer on Fridays to inquire as to whether it has work available for him the following day.

On Monday, April 19, 1999, the employe was laid off from his full-time employment. He then contacted the employer to ask whether it had any work for him during the rest of the week. At the same time the employe indicated that he was going to a wedding on Saturday, April 24, and would be unavailable for work that day. It was not established that the employe could have performed any work for the employer on April 24, had he been available. He did not perform services for the employer again until May 15.

The question to decide is whether the employe was on a voluntary leave of absence on April 24, 1999 and, if so, what effect that leave of absence has on his eligibility for benefits during the week in question.

The appeal tribunal found that, as a casual driver, the employe's employment ended with the completion of each work assignment and that, consequently, he could not have requested a leave of absence, since there was no employment relationship in effect at the time. The commission disagrees. The employe had an ongoing employment relationship with the employer, in which he called every Friday to inquire about work the following day. The commission does not believe that the employment relationship was severed at the completion of each day's assignment, and concludes that the employe's request for time off on April 24, 1999, did amount to a voluntary leave of absence for a definite time period.

An employe who is on a voluntary leave of absence for a portion of a week is denied benefits to the extent he refuses work or fails to perform work where work is available. Thus, wages the employe would have earned had he not been on a voluntary leave are imputed to him to determine his benefit eligibility. Schier v. Rustic Stag, Inc. (LIRC, September 27, 1995). In this case, the employer did not have work available for the employe every Saturday, and the record contains no evidence to indicate that he could have performed any work for the employer on April 24, had he not been on a voluntary leave of absence.

The commission therefore finds that in week 17 of 1999 the employe was on a voluntary leave of absence for a definite period, but that his eligibility for benefits is not affected by his leave of absence.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits for the week ending April 24, 1999 (week 17), if otherwise qualified.

Dated and mailed August 27, 1999
lawreth.urr : 164 : 1 AA 128

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the department argues that, where there is an established pattern of using the employe's services, an employment relationship continues to exist. The department contends that, according to longstanding department policy, the employe's request not to be scheduled for work was a voluntary leave of absence, for which benefits must be suspended for the week ending April 24. As stated in the body of the decision, the commission agrees that the employment relationship did continue to exist under the circumstances present in this case and that the employe's request, made in advance, for a day off work can be said to constitute a voluntary leave of absence. However, while the department argues that a leave of absence from a single shift renders the employe ineligible for benefits during the entire week at issue, the commission applies a proportionate disqualification based upon the amount of work the employe actually missed due to the leave of absence. See Nettesheim v. The Swiss Colony Store (LIRC, March 2, 1993); Schier v. Rustic Stag, Inc. (LIRC, September 27, 1995). Thus, the employe's leave of absence on April 24 only operates to disqualify him for benefits based upon the wages he would have earned that day, had he not been on leave. Where the record established that work was not consistently available for the employe, and where it was not demonstrated that there would have been work for the employe on April 24, there is no basis to conclude that he could have earned any wages that day. Consequently, the employe's benefit entitlement is unaffected by his one-day leave of absence.

cc: GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS


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