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


JOSEPH A RAMBO, Employe

ACTIVE FOAM PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605013MW


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:

Paragraphs three and four of the appeal tribunal's findings of fact and conclusions of law are deleted, and the following is substituted therefor:

"By April 13, 1999, the employe no longer was willing to do the traveling his position required. He also was dissatisfied with some of the company's practices and personnel. He telephoned the employer and indicated as such to him, and also that he would be leaving in two to three months. This would place the employe's departure on or near June 27, 1999, the first day of week 27. The employe again spoke with the employer on April 30, and again indicated that he was giving the employer two-three months' notice. At that time, the employer indicated that he was inclined to give the employe only two weeks more of employment. In the end, the employer gave the employe three weeks, until May 21, 1999 (week 21), at which time the employment relationship ended.

"Where an employer does not allow an employe to work between the notice of resignation and the intended quit date, the interim separation is at the impetus of he employer and, as such, is tantamount to a discharge. The employer "accelerated" the employe's quit from late June to May 21 (1). In such cases, an employe's unemployment is only due to the employe from the intended resignation date forward. In the interim period, an employe's unemployment is due to the first separation by the employer in question and, during that period, the employe is eligible for unemployment insurance."

Paragraph 12 of the appeal tribunal's findings of fact and conclusions of law is deleted, and the following is substituted therefor:

"It is therefore found that, in week 21 of 1999, the employe was discharged by the employer, not for misconduct within the meaning of Wis. Stat. § 108.04(5). The employe therefor is eligible for unemployment insurance in weeks 22-26 of 1999, if he is otherwise qualified."

In paragraph 13 of the appeal tribunal's findings of fact and conclusions of law, "week 21" is deleted and "week 27" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 27 of 1999, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is eligible for benefits in weeks 22-26 of 1999, if he is otherwise qualified.

Dated and mailed January 13, 1999
rambojo.umd : 105 : 7  MC 627

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner


PAMELA I. ANDERSON, COMMISSIONER (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. The employe in this case told the employer he would no longer be able to work for the employer because he was not putting his work before his marriage. He told the employer if it was going to bring his wife to tears five days before he had to go on an overnight trip he was not going to do it. The employe told the employer he was quitting. The employe asked the employer how much time he had the employer told him he was inclined to give him two weeks but the employer gave him three weeks.

The employe talked about giving the employer until he found another job which might be two or three months. The employe had already refused to do the travel that was a part of his job and the employer accepted his quit. The employe can not quit and fix his last day on an indefinite date such as when he finds a new job unless the employer agrees. Here the employe was clearly the moving party. The employe quit without setting a date certain but the employe had refused to do part of his work and had expressed hostility toward co-workers. If this is not a quit by the employe then it would be a discharge for misconduct connected to his employment and I am reluctant to put the employe in a worse position that if he had not petitioned the commission for review. Therefore, I would find that the employe quit not within any of the exceptions that would allow for the immediate payment of benefits.

__________________________________________
/s/ Pamela I. Anderson, Commissioner

cc: ATTORNEY HARVEY HELD
SWARTZBERG & DUGGAN SC


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Footnotes:

(1)( Back ) The commission recognizes that the employe had given only an indefinite date as to when he intended to quit his employment. But this is exactly why the dissent is incorrect in its assertion that the employe was the moving party as to the date of separation. The employe's intent was to quit the employment some time around the end of June, and that is what the commission is finding. There is no evidence whatsoever in the record to indicate that the employe intended to quit his employment on May 21, the date of separation. Thus, as to the actual date of separation, it was the employer who was the moving party to the separation.