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


DAWN M AUGSBURGER, Employe

SEEFELD FAMILY OF FUNERAL CHAPELS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401959AP


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 beginning in week 34 of 1999, if otherwise qualified.

Dated and mailed December 23, 1999
augsbda.usd : 105 : 1 MC 626  MC 687   PC 713

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it fully agrees with the administrative law judge's conclusion of discharge by the employer. The employer asserts in the petition for review that the employe admitted she might be leaving the employment in one day, and that the employe signed the resignation letter. The fact remains, though, that the employe did not tell the employer that she was leaving in one day. The employer also attempts to sidestep the fact that it was the employer, not the employe, who prepared the resignation letter for the employe to sign. The most important fact, finally, is that the employer was the moving party in the separation, since it was the employer who handed the employe the letter, indicating "why don't we make it easy and have it [the separation] happen promptly." Given these factors, the commission cannot accept the employer's assertion that the separation was a quit by the employe. A quit requires more than an indefinite intent to leave work at some future date; it requires a date certain, and that was completely lacking in this case.

The employer also asserts that the employe's time spent composing a resume and cover letters (for other employment) on the employer's time, constitutes misconduct for unemployment insurance purposes. There is no question but that such conduct can constitute misconduct but, in this case, the employer did not establish that it was so. First, the employer testified that he would not have discharged the employe had she not signed the resignation letter and left. Second, the evidence indicates that the computer disk the employe used, was outdated and that the employe therefore had not destroyed any records of the employer in order to copy the letters in question. While the employe's composing of the letters on work time is slightly more troubling, the employer did not establish that occasional personal use of the employer's computers was prohibited. Absent evidence of a rule prohibiting such conduct, it is only speculation on the commission's part whether such conduct is misconduct in the eyes of a particular employer. It was the employer's evidentiary burden to establish the alleged misconduct; the employer did not meet that burden.

The employer also alleges, finally, a failure in due process by the administrative law judge's "deciding" mid-hearing that the separation was a discharge by the employer. In the context of this case, the commission cannot conclude that the administrative law judge's conduct of the hearing was improper. First, it was the employer's own evidence that led the administrative law judge to conclude that the separation was a discharge. Second, the administrative law judge specifically stepped back from that conclusion in order to allow the employer to present any evidence it wished to present. Given these factors, there was no failure in process afforded to the employer in this case.

cc: WALTER F MARTY
ATTORNEY JAMES R MACY


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