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


TANYA M BRAUCH, Employe

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605347WK


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, except that it makes the following modifications:

Following the fifth full paragraph on page 2 of the decision, insert the following:

"The circumstances of this separation fall under the "accelerated quit" principle. If an employe gives a future date as a date of quitting, and the employer requires the employe to separate from the employment at an earlier date (and the earlier separation itself is not for a disqualifying reason), then the employe is eligible for benefits from the date of separation to the date the employe originally gave as the anticipated quit date.

"If an employe gives the employer notice of her intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employe to continue working up until the time that notice would have been effective, the employe will be eligible for benefits until the time that the resignation would have become effective unless there was some intervening misconduct on his part.

"Boehm v. Downtown TV, No. 88-402052WU (LIRC, 6-29-89). This principle is also enunciated in the Department of Industry, Labor and Human Relations' Unemployment Compensation Manual:

"When an employe gives notice of an intent to quit on a specific future date, an employer may terminate the individual at a date more convenient to the employer. The quit disqualification does not apply to the period between the last day of work and the date set by the employe. The quit issue does not arise until the effective date set by the employe.

"Vol. 3, part VII, Ch. 1, pp. 84-85.

"In this case, the employer acted to prevent the employe from working her final week. Therefore, the employer accelerated her quit and the employe should be eligible for benefits in that week. It is true that the employer disputes that the employe gave notice of her absence on June 25, giving rise to inference that the employe's misconduct in failing to give notice caused the employer to release her early. However the ALJ found that she had left a note and while this method was not the preferred way to give notice to the employer, the employer's witness acknowledged that this method was used for scheduling absences. The employe's actions in leaving a note instead of calling do not demonstrate a disregard of the employer's interests."

On page three, delete all reference to "$872" and insert "$763."

Delete paragraphs two and three on page three and insert:

"The commission further finds that in week 28 of 1999, the employe terminated her employment with the employer, within the meaning of Wis. Stat. § 108.04 (7)(a), but not for a reason constituting an exception to the (7)(a) quit disqualification, but that the employer by its action in not permitting her to continue working until the effective date of quitting incurs liability for unemployment benefits for week 27 of 1999."

DECISION

The decision of the administrative law judge, as modified, is reversed in part and affirmed in part. Accordingly, the employe is eligible for benefits in week 27 of 1999. The employe is ineligible for benefits beginning in week 28 of 1999 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay $763 to the unemployment reserve fund.

Dated and mailed November 24, 1999
braucta.umd : 178 : 7 MC 627 VL 1007.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the employe argues that she never intended to quit her job nor did she ever have any conversation with the employer about her last day of work. The central question in this case is one of credibility. The employer's version of the facts and the employe's version of the facts are inconsistent. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the employe's version. The commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. Therefore it will defer to the judgment of the administrative law judge as to credibility. The commission has however reversed that decision with regard to week 27 of 1999 which reduces the overpayment by the $109 she was eligible to receive in that week.

cc: WALGREEN

ROBERT C TIBBITS
CONTINENTAL INVESTIGATIONS & SEC


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