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


ERIC O HARLSON, Employe

PELTON CASTEEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603793MW


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 as a molder from February 1, 1999, for the employer, a firm engaged in steel casting. His last day of work was April 30, 1999. After failing to report for work or call in on May 3 through May 6, 1999, the employe was notified of his termination for violation of the employer's work rule which provided that a worker who does not call in or report to work for three consecutive work days severs the employment relationship.

The issue which must be resolved is whether the employe quit or was discharged. If the employe quit, it must be determined whether his quitting was for any reason which would allow for immediate benefit payment. If the employe was discharged, it must be determined whether the employe was discharged for misconduct connected with his employment.

In his three month period of employment with the employer the employe had been tardy on three occasions, and absent on four occasions, in addition to being absent from May 3 until May 6. The employe had been warned about his attendance.

The employe was arrested for disorderly conduct on May 2, 1999, and was not released until May 6, 1999. The employe testified that he had a probation hold or he would have been able to go to work on Monday or Tuesday. The employe was aware of the three-day rule. The employe testified that on May 7 he asked his girlfriend to call in to report his absence. The employe had been incarcerated on March 15 and 16 on another probation hold for disorderly conduct, and became aware on this prior occasion that the employer would not accept collect calls.

In Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980), the Supreme Court noted that a voluntary termination or quit under the Wisconsin unemployment law is not limited to situations where an employe actually says "I quit". The court went on to cite its past decisions holding:

". . .When an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the continuation of the employe-employer relationship, it must be held, . . . that the employee intended and did leave his employment voluntarily."

Nottelson, 94 Wis. 2d at 119.

The employe asserted that he did not violate the employer's three-day rule because his girlfriend called in on two of the three days during which he was absent. However, the commission is not convinced that the girlfriend called the employer. The employer was not aware of any calls on the employe's behalf until the fourth day. Further, the employe admittedly made no attempt to give the employer notice on the first day, because his girlfriend was out of town. The employe knew from his absences in March that the employer would not accept collect calls, and should have made arrangements for reliable notice to the employer. The employe had a poor attendance record and his absences were generally not for valid reasons. In addition, he was or should have been aware, given his probation hold, that involvement with the police would result in multiple days in jail. Under the circumstances, the commission concludes that the employe's actions in being absent from work, without notice were inconsistent with the continuation of the employment relationship and therefore amounted to a quitting. The employe quit because he was in jail and unable to report for work. The employe has not alleged or demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow immediate benefit payment.

The commission therefore finds that in week 19 of 1999 the employe terminated his work with the employing unit, within the meaning of Wis. Stat. § 108.04 (7)(a), Stats., and that his quitting was not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $156.00 per week for each of weeks 20 through 35 of 1999, amounting to a total of $2,496.00, for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1999, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $2,496.00 to the Unemployment Reserve Fund.

Dated and mailed September 16, 1999
harlser.urr : 145 : 1  MC 605.091

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not have any specific credibility impressions of the witnesses, but did believe that the employe asked his girlfriend to notify the employer because the employe's girlfriend had notified the employer on the prior occasion. The commission, after reviewing the record, concluded that the employe's actions in violating the employer's three-day rule, when he knew of the rule and that its violation would result in his discharge, was inconsistent with the continuation of the employment relationship and amounted to a quitting of his employment.


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