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


CHARLES J HICKOK, Employe

STOUGHTON TRAILERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002017MD


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 worked for the employer, a manufacturer of semi-trailers, for approximately six months as an assembler. His last day of work was February 22, 1999, and his employment was terminated on April 21, 1999 (week 17).

The employe was on an approved medical leave of absence from January 4 through February 22, 1999 due to a back injury. During his leave the employe submitted medical documentation to the employer upon its request and telephoned the employer every week, pursuant to its policy.

At the employe's request, his doctor released him to return to work on February 22, 1999, and he reported for work that day. However, prior to completing his shift the employe notified his supervisor that the work was causing him back pain and that he could not continue. The employe's supervisor directed the employe to go home until he was healthy. The employe went home and resumed his leave of absence. He continued to call the employer every week.

On April 1, 1999, the employer sent the employe a certified letter asking him to provide medical documentation justifying his continued leave of absence and explaining when he could be expected to return to work. The employe was told to submit this information within 15 days of the date of the letter. On April 21, 1999, the employer sent the employe a letter advising him that it had not received the requested medical documentation and that it considered him to have voluntarily terminated his employment as of February 22. The employe was directed to turn in his identification badge.

On April 22, 1999 a representative from the employe's medical clinic contacted the employer on the employe's behalf and stated that she had sent documentation supporting the employe's continued need to be off work due to medical reasons. The clinic representative Faxed the employer a copy of the employe's documentation. The employer indicated to the clinic representative that the employe should call on April 28 to inquire about his status. The employe attempted to contact the employer on April 26, 1999, but was told to call back on April 28. When the employe called back on April 28, he was told that the termination decision stood.

The issue presented in this case is whether the employe voluntarily quit his job or was discharged by the employer.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer maintained that the employe quit by failing to submit his medical documentation by April 16. The commission disagrees. The employe testified that when he received the April 1 letter from the employer he took it to his doctor's office and was told the matter would be taken care of. Thus, the employe made an effort to comply with the employer's request and believed the matter had been handled by his doctor's office. While the employe did not follow up to ensure that the documents had reached the employer, he reasonably understood that he did not need to do so. Further, because the employer's April 1 letter did not advise the employe that failure to submit medical documentation by April 16 would be deemed a voluntary quit, the employe was unaware his job was hanging in the balance and did not realize that he needed to be especially vigilant in ensuring that the documentation arrived at its destination by the appointed date.

The employe clearly did not intend to quit his job. He made weekly contacts with the employer throughout his absence, as required under its policy, and attempted to submit medical documentation to the employer at its request. These actions were taken in furtherance of the employment relationship and, while they may have proved inadequate, it cannot reasonably be said that the employe engaged in any conduct so inconsistent with a continuing employment relationship as to constitute a voluntary quit.

Having concluded that the employe did not voluntarily quit, a secondary issue to resolve is whether he was discharged for misconduct connected with his employment. The employe was discharged for failing to ensure that the employer received his medical documentation within the time period requested, and not due to any actions on his part which amounted to misconduct.

The commission, therefore, finds that in week 17 of 1999 the employe was discharged and not for misconduct connected within his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed August 10, 1999
hickoch.urr : 164 : 5  VL 1007.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge regarding witnesses credibility. The commission's reversal is not based upon a differing assessment of witness credibility. Rather, the commission has reached a different conclusion after applying the law to essentially the same set of facts as that found by the appeal tribunal.


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