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


STACY L CRUZ, Employe

SENTRY FOODS NO 531, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601094WK


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, except that it makes the following modifications:

1. In paragraph three of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW the sentence "The possibility of her continuing work was discussed" is deleted and the following is substituted therefor:

"On December 15, the employer asked the employe how they could work out the employe's hours. The next day the employe told the employer the hours she could work, and wrote a note to the employer listing the hours and rescinding her December 11 resignation."

2. Paragraphs 4 - 14 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

"The employe contended that she was discharged from her employment. This contention must be sustained. Although the employe submitted a resignation to the employer, the employer initially did not accept it. In fact, the employer approached the employe and asked the employe how they could work out the issue of the employe's hours. The employer and employe then actually worked out the issue of the employe's hours, resulting in a December 16 note from the employe to the employer which both listed hours the employe was available to work and rescinded the employe's previous resignation. An employer's failure to act upon (accept) a letter of resignation, however, allows an employe to change it, including withdrawing it. See Kohut v. Wis. State Council for Home and Family, Cir. Ct. Case No. 135-390, 1976 U.C. Digest VL at 52-53 (3/5/73). For these reasons, it is concluded that the separation was at the impetus of the employer and, as such, was a discharge and not a quit. The dissent, in arguing that the separation was a quit, ignores this evidence and sets up a "straw man" logical fallacy by her focus on the employe's leaving the employment on December 21. At that point the employer had already discharged her - to be effective December 25. Thus, at most the employe accelerated her discharge by three days.

The next issue is whether the discharge was for misconduct for unemployment insurance purposes. Misconduct is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. It cannot be concluded that the employe's discharge meets this standard. The employer discharged the employe for attendance failures, primarily instances of tardiness and a partial absence on Sunday, December 13. The employer also argued that the employe was calling in sick, but the employer provided no specific evidence as to instances when that occurred. The employe conceded that she was late to work approximately once per week and that she missed much of her shift on December 13. The employe had only recently returned to work after a pregnancy leave, however, and now had an infant daughter. All of the employe's attendance failures were due to lack of child care for her infant daughter or to delays in picking up her child care provider (her mother). Given the reason for the employe's attendance failures, and the circumstance of the recent birth of her infant daughter, her failures are not the intentional disregard of an employer's interests which is misconduct for unemployment insurance purposes. It is therefore found that, in week 52 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 modified to accord with the foregoing and, as modified, is affirmed. Accordingly, the employe is eligible for unemployment insurance, if otherwise qualified.

Dated and mailed June 7, 1999
cruzsta.umd : 105 : 1  MC 605.09 VL 1007.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe this is a quit by conduct inconsistent with maintaining the employment relationship. The employe returned from a pregnancy leave and had difficulty working her assigned hours. Part of the problem was she did not want to put her child in a day care center and basically relied on her mother to baby-sit. Exhibit 9 documented a call from the employe on December 13, 1998 where she called to say she could not work because she had assumed her mom would watch her child but her mom had plans and her husband had to finish painting outside before it got too cold.

The employe's hours had been temporarily reduced because she was missing work. The administrative law judge had found that she had good cause attributable to the employer because of the reduction in pay. She would have been able to file for partial benefits based on a change in scheduling so it would not have been good cause attributable to the employer.

The majority found that the employer discharged her but not for misconduct connected to her employment. The employe did not work up until the day of her resignation, which was December 25. On December 21 the employe submitted a note, Exhibit 4 along with handing in her uniform. She says "I took the meetings as being fired because I wrote my notice & they asked me back so should + is a void." She testified at the hearing "I was never told I was fired. I continued working until the end of my shift. I left at 8:30 that day. I never came back to work again because I thought I was fired. Yes, I was told to work until 12/25. I do not know why I thought that day was the end of the employment relationship instead of 12/25." She did not bother to clarify the situation. She left her uniform which is another sign of a quit. If there was confusion it was her duty to ask questions.

For these reasons, I believe the employe quit but not with good cause attributable to the employer.

__________________________________
Pamela I. Anderson, Commissioner

cc: LAW OFFICE OF ELISA M RUER SC


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