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


LORI J PIGGOTT, Employe

MANPOWER TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001680JV


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 as of week 11 of 1999, if otherwise qualified.

Dated and mailed August 18, 1999
piggolo.usd : 145 : 1 VL 1001.09   VL 1007.05   VL 1025

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employe did request a week off and in turn, should not be granted benefits for the week she did not want to work. The commission agrees. Normally, in a case like this, the employe would be subject to a reduction in her benefits based on the amount she would have earned had she performed the work offered to her. In this case, the ALJ did make that specific finding because the employe did not file for benefits in week 11, and another Appeal Tribunal Decision issued by the same ALJ, determined that she was not eligible for benefits in week 12 of 1999 as she failed to timely notify the department of an intention to initiate or reactivate a benefit claim, and not due to an exceptional circumstance.

The employer originally contended that the employe quit her job by refusing an assignment. However, when a worker needs a day or a few days off, and neither party treats the situation as a quitting, the commission has found that the employe failed to perform work available in the given week, not that the employe quit. Cunningham v. P A Staffing (LIRC UC Decision Hearing No. 98600293RC April 17, 1998), where the commission, held that absence with notice and for a valid reason, does not evince an intention to terminate an employment relationship.

In this case, the employe was not treated as though she had quit her employment. She was offered another assignment the next week, and then offered this same assignment at issue here, which she accepted. She was not put on the employer's inactive files as she was when she ultimately left to return to Gillette. While the employe did not explain why she needed this time off, she was given permission to take it by the employer, which does not demonstrate an intention to quit. See Joeann Jackson v. Cornwell Personnel Associates Ltd, (LIRC UC Decision Hearing No. 97607140MW February 20, 1998). The employer further asserts that the employe was specifically offered work which she refused. The ALJ found, essentially, that the employe more or less precluded the employer from making a bona fide offer of work by asking for the week off. While the commission might be inclined to accept the employer's testimony that a bona fide offer was made, because in this case the employe testified she was disinclined to take the position, and mentioned not wanting to work at those hours and wages because her previous employer might hire her back. This suggests that she may have been aware of the conditions of work at the client. The employe had other job offers to think about and may not have remembered the conversation accurately. While normally refusal of a job offer would constitute a quit, in this case, the employer agreed to let the employe have some time off, so even if the commission were to find that the employe refused the work, under these circumstances, the employe's actions did not constitute conduct inconsistent with the continuation of the employment relationship.


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