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


BEVERLY A BURGESS, Employe

METRO CLEAN CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602418MW


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 about five years for the employer, most recently as a supervisor. Her last day of work was March 1, 1999 (week 10).

On March 1, the employer informed the employe that because of several customer complaints, she was being demoted from her position as a supervisor. The employe reported to work the next day, and was informed that because she had been demoted, she was being transferred to a different location, at a downtown bank. The following day, the employe contacted the employer to ask about the demotion and explained that she did not wish to go to another facility. The employer informed her that it was the employer's policy to transfer a supervisor to another location after a demotion. The employe failed to report to work on March 3, because she was uncertain as to the new location. The employe had permission to be off work on March 4 and 5 because she had to attend a funeral in another town. The employer has a rule which provides that if a worker fails to report for work or call in to report absences for three consecutive days, that worker is considered to have quit. On March 5, prior to the start of the employe's shift, the employer mailed the employe a letter of separation, because of her absences on March 3 and 4.

The employer contended that the employe's failure to report to work on March 3 constituted a quitting of her employment. The commission disagrees. The employe testified that she failed to report for work on March 3 because she was uncertain as to where she was to report. The employe had been told she was to report to a downtown bank, and even if she was not certain exactly where that was, she should have contacted the employer for directions, rather than simply failing to report for work. Therefore the employe did not have a valid reason for her absence. However, the employe never informed the employer that she was quitting. A single absence, even for an invalid reason, does not amount to conduct inconsistent with the continuation of the employment relationship, from which it must be inferred that the employe quit her employment. To the extent that the employer considered the employe's absence on March 4 in determining to send the separation letter the employer itself did not find the employe's single absence on March 3 to constitute a quitting. The employe had permission to be off on that day to attend a funeral. Thus, the employe's absence on March 4 was for a valid reason. While the employe may have shown extremely poor judgement in failing to report to work on March 3, the record in this case suggests that this was an isolated incident. There is nothing in the record to establish that the employe had any problems with attendance prior to this incident. While her attendance record was unsatisfactory to the employer, it did not evince such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 10 of 1999, the employe was discharged but that the discharge was not for misconduct connected with her work, 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 beginning in week 10 of 1999, if she is otherwise qualified.

Dated and mailed November 2, 1999
burgebe.urr : 145 : 6  VL 1001.09 VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. However, the commission credits the employe's testimony that she did not intend to quit by being absent on March 3. The commission notes that the employe was off for valid reasons and with notice to the employer on March 4 and 5. On the following Monday, March 8, she contacted the employer to discuss the situation. She also contacted the employer on March 9. Thus, the employe demonstrated a desire to remain employed. In addition, the employer has a rule which specifically states that a worker will be considered to have quit after being absent without notice for three consecutive days. Thus, the employe would not have been aware that the employer would have considered her to have quit because of a single day of absence without notice, and a second day of absence with notice and permission.

 

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe was demoted from a supervisory position but stayed at the same pay level. The employer testified "On 3/03 I did tell the employe where the Norwest Bank was and I gave her the address." There was hearsay testimony that the employe had been demoted on March 2 by the area manager. The employer testified that the employe did not want to work at another facility. The employer told her that supervisors who have been demoted are not allowed to stay in the same building. While the employe did have March 4 and 5 off to attend a funeral, she did not report to work on Monday, March 8 but called to discuss the situation. The employe never reported to work again. The employe conceded that she had nothing in writing giving her the funeral days off so it is possible that the letter went out too soon for a three day no call no show.

I agree with the administrative law judge that the employe had no good reason not to report to work on March 3. The employe testified "Mr. Martin wanted me to go to a bank downtown. I think he named the bank. I said that I didn't know where the bank was and I wanted to stay at the Stein Medical Building..I did not work 3/02 because I didn't know where to go. I asked Mr. Martin for the address. I don't remember if Mr. Martin gave me an address or not." I believe that this case fits into the category of a quit by conduct inconsistent with maintaining the employment relationship. If she truly didn't know the address she could have asked but I believe she was told and decided not to go to the new location hoping that the employer would change its mind and allow her to stay where she had been.

For these reasons, I would affirm the result of the administrative law judge.

_______________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY STEPHEN M BYERS
LEGAL AID SOCIETY OF MILWAUKEE INC

ATTORNEY MARY NELL REGAN
WESSELS & PAUTSCH


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