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


MARK S CUNNINGHAM, Employe

P A STAFFING SER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600293RC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed April 17, 1998
cunnima.usd : 132 : 1  VL 1001.09  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment but not for misconduct connected with his work. The employer maintains in its petition, as it did at the hearing, that the employe voluntarily terminated his employment pursuant to its policy. However, the policy does not inform workers that calling in late to report an absence is an automatic termination, but that failing to report an absence and failing to report for work results in termination. Further, even if the employer's policy provided that failing to call in one hour prior to the start of a shift is a voluntary termination, that would not make it so.

First, simply because the employer decides that a worker quits under certain circumstances, determined at the employer's sole discretion, does not make it so. Whether a worker has in fact quit depends on the individual circumstances of each case. In Canney v. Olsten of Milwaukee Inc, UI Hearing No. 92-601990 (LIRC Dec. 4, 1992), the employer argued that the employe quit her employment, when she notified the employer she would be unable to complete an assignment because she had to attend a funeral. (1)   The commission rejected such argument, finding instead that the employe failed to perform work available. The commission stated:

"However, her absence from work, to attend the funeral, was reasonable. Furthermore, when she notified the employer that she would not be completing the assignment, the employer did not indicate that it considered her to have quit at that time. While the employer's policy provided that workers who do not complete assignments are considered to have quit, the unemployment compensation laws are not determined by an employer's policies. The facts of this case do not indicate an intention on the part of the employe to voluntarily terminate her employment..."

The employe, by notifying the employer on September 29, September 30, and October 1, that he could not report for work did not indicate an intent to terminate his employment. Indeed, if the employe intended to quit his employment on September 29 there would have been no need for him to continue to contact the employer to alert the employer of his condition. That fact that a worker is absent for valid reasons, and with notice to the employer, albeit late notice, does not indicate an intent to terminate the employment relationship. Finally, when the employer spoke to the employe on September 29 the employer never notified him that it considered that he had voluntarily terminated his employment by his late call in. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


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Footnotes:

(1)( Back ) See also Hall v. Cornwell Personnel Assoc Inc, UI Hearing No. 94-606005 (LIRC Dec. 16, 1994), in which the commission stated:

"The employer maintains that the employe's failure to report to work as instructed constituted a quit. The employer maintains that the department has always held that when an employe fails to report to work as directed that his failure to report to work constitutes a voluntary termination. The commission disagrees. Rather, it is the circumstances of each case which are examined to determine whether the employe has shown an intent to leave the employment. Not every job refusal and not every failure to contact the employer on a date specified constitutes voluntary termination of the employment relationship..."