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


JEFFERY D UNDERWOOD, Employe

MANIONS WHOLESALE BUILDING SUPPLIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201204EC


On August 5, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason which would allow immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse determination, and hearing was held on September 13, 1999 in Eau Claire, Wisconsin before a department administrative law judge. On September 16, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe began working in July of 1998 as a forklift operator for the employer, a wholesale building supply business. His last day of work was on or about December 17, 1998. After that time, the employe was off work following a serious automobile accident. As of mid- to late July of 1999, the employe had sufficiently recovered from the injuries he sustained in the accident, to be able to return to work. At that time, the employer did not take him back and the issue is the nature of the separation or suspension. The commission believes the employe's failure to return to work was a discharge by the employer, not for misconduct, and so reverses the appeal tribunal decision.

The employe was in touch with the vice-president on and off during the course of his rehabilitation. The employe started work-hardening therapy in March, and contacted the vice-president approximately three weeks thereafter. The next night the employe also went into the workplace and spoke with his supervisor. The employe told the supervisor he thought he would be released to work within the next two weeks; the supervisor would not make eye contact with the employe, and was dismissive.

After the employe was released, he telephoned the employer, to speak with the vice-president. A woman told him that the vice-president was not in; he told her that the doctor had released him to return to work full time without restrictions. The employe called again the next day and, again, the vice-president was not in. The employe was transferred to an individual purporting to be the president of the company (the vice-president's brother). The employe told him that he had been released to return to work and asked him to let the vice-president know that he (the employe) could come back to work. Approximately two weeks after the employe's release, a woman in payroll told the employe that the employer did not have a position available for him. This final testimony is consistent with a piece of hearsay evidence offered by the employe, a letter from the manager of Wisconsin Title regarding a conversation she had with an assistant supervisor at the employer.

The employe made several attempts to contact the employer's vice-president, none of which the employer allowed to occur. The employe went so far as to leave a message with the employer to the effect that he had been released to return to work and that he could come back to work. At no time did the employer let the employe come back to work. This makes the separation one brought about by the employer and, as such, a discharge by the employer and not a quit by the employe. There is no evidence in the record, finally, to support a conclusion of misconduct on the employe's part in relation to the separation from employment.

The commission therefore finds that, in week 29 of 1999, the employe was discharged from his employment, but not for misconduct for unemployment insurance purposes, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance as of week 29 of 1999, if he is otherwise qualified.

Dated and mailed January 10, 2000
underje.urr : 105 : 2 MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge had not found credible the employe's claims of having attempted to contact the vice-president after he had been released to return to work with no restrictions. In the conference with the administrative law judge, the administrative law judge indicated that she thought the employe had telephoned the employer, but that he had not thoroughly or sufficiently followed up his contacts. The commission must conclude, to the contrary, that the employe's efforts in this case were sufficient. There of course is no "bright line" as to how much contact an employe must initiate with an employer, before giving up. In this case, the contacts the employe attempted were sufficient.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe dealt with the vice-president until the time he was released to return to work with no restrictions. The employe originally was contacting the vice- president every two weeks. The employe contacted the vice-president three weeks after he started therapy. The vice-president told the employe to keep him informed. The employe did not keep the vice-president informed. He showed up at work about 2 months into work hardening and talked to his supervisor. He told the supervisor that he thought his doctor would release him in the next two weeks. The supervisor said whatever. The employe alleges he called the employer twice after he was released but was unable to reach the vice-president. At no time did he give the employer a release from his doctor.

I did not find creditable that the employer had changed its hiring practices and that a woman was now in charge of those duties. The employe knew before that he was to talk to the vice-president. I believe he needed to talk to the vice- president and he should at the very least brought the employer a release from his doctor to return to work without restrictions.

I agree with the administrative law judge and would affirm her decision.

___________________________________
Pamela I. Anderson, Commissioner


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