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


MARIA D CARMONA, Employe

SUPERIOR HEALTH LINENS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003473MD


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 the employer, a laundry, for about six years as a machine operator. Her work shift was from 6:00 a.m. until 2:30 p.m., Monday through Friday, and her last day of work was August 20, 1999 (week 34).

On her last day of work the employe went to pick up her paycheck at 2:30 p.m., at which time she was told by a supervisor that she would need to remain at work until 4:30 p.m. that day. The employe indicated that she was unable to do so because she had a previous commitment to baby-sit for her daughter's child. The supervisor then told the employe that if she did not work until 4:30 p.m. that day, and on Saturday, which was her day off, she would no longer have a job with the employer. He pointed at the door and told her to leave. The employe took her paycheck and left.

Some time later the employe returned to the employer's plant to turn in her uniforms and pick up her final paycheck. At that time the employe talked to an individual named Chuck Smith, whom the employe regarded as the "real boss." Mr. Smith asked the employe whether she wanted to return to work, and she indicated that she would be willing to come back under certain conditions. However, Mr. Smith refused to rehire the employe under the conditions she specified, and the employment relationship was not restored.

The question to decide is whether the employe's separation from employment was a quit or a discharge and whether she is eligible for benefits based upon that separation.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963). The commission does not believe the evidence supports a finding that the employe voluntarily quit in this case.

The employe did not intend to quit her job, nor did she engage in any actions that were inconsistent with a continuing employment relationship. Rather, on her last day of work the employe was given an ultimatum by a supervisor, that she either remain at work after her shift had ended or lose her job. The employe told the supervisor she could not stay at work due to a prior engagement, at which time he pointed at the door and told her to leave. Under the circumstances, the employe was justified in concluding that she was discharged, and the commission believes it was the employer's actions that resulted in the termination of her employment. While it is true that the employer subsequently offered the employe her job back, this did not occur until after the employer had already severed the employment relationship in the manner described above, and it does not change the nature of the separation from a discharge to a quit.

Having concluded that the employe was discharged, a final question to resolve is whether her discharge was for misconduct connected with her employment. The evidence indicates that the employe was discharged because she was unwilling to work overtime with no prior notice at a time when she had a previously scheduled personal engagement. The employe's actions in this regard cannot reasonably be construed as misconduct.

The commission therefore finds that in week 34 of 1999 the employe was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1998, provided she is otherwise qualified.

Dated and mailed December 9, 1999
carmoma.urr : 164 : 1 MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not conduct a credibility conference with the administrative law judge, but reverses the appeal tribunal decision as a matter of law based upon the essentially the same set of facts as that found by the appeal tribunal.

Pamela I. Anderson, Commissioner (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe testified "in regard to whether I had worked over-time in the past, yes for 6 « years I worked overtime on Saturday's and Sunday's whenever they needed me." She also testified "In regard to whether I'd worked until 4:30 in the past, yes." The employe gave hearsay testimony that her daughter talked to the employer and told him that the employe could not continue working as much overtime because the daughter needed the employe to help her with babysitting. Neither the daughter nor the employer were at the hearing to show that the conversation took place and that the employer had knowledge that the employe was unable to stay for overtime.

For these reasons, I agree with the administrative law judge and would affirm the appeal tribunal decision.


___________________________
Pamela I. Anderson, Commissioner


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