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


MARA E BACKE, Employe

ADELMAN TRAVEL SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606916MW


On September 17, 1999, the Department of Workforce Development issued an initial determination which held that the employe did not voluntarily terminate her employment and that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on October 20, 1999 in Milwaukee, Wisconsin before a department administrative law judge. On October 29, 1999 the administrative law judge issued an appeal tribunal decision reversing 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 worked approximately seven months for the employer, a travel agency. Her employment ended on September 1, 1999 (week 36), and the issue is whether the separation was a quit by the employe or a discharge by the employer. The commission concludes that the separation was a discharge by the employer, not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

In July of 1999, the employe transferred to a new position, a position which turned out to involve a higher percentage of international booking work than the employe thought it would entail. In response, the employe sent an e-mail message to her supervisor, indicating that "this position" was not working out for her and stating that she (the employe) hoped "we can find a position that will suit me better and meet the given expectations." The employe discussed the matter with one of the employer's vice-presidents on August 13. The employe had telephoned her to see about getting the matter resolved. The vice-president asked the employe if she would stay at her current position until a replacement was found, to which the employe agreed.

The employe again spoke with the vice-president on August 23, by which time the employer had found a replacement for the position the employe currently was in. The vice-president told the employe that, at that point, the employe's options were to go into support or to work at headquarters and that she (the employe) was to fax an internal application to the human resources director. The employe obtained an internal application form, spent a couple of days deciding which position to apply for, was out of the office on August 26 and 27 with a pinched nerve, and sent the application on August 30. The employe during this time also trained her replacement; she subsequently reported to headquarters on or about September 1, at which time the employer told her that it had no position available for her and that it was accepting her resignation.

In a case where, as here, an employe does not expressly state that he or she is quitting an employment, a quit will be found when the employe engages in conduct inconsistent with an intent to continue the employment relationship. The record does not support such a finding in this case, however. The employe's July e-mail to the employer indicating her dissatisfaction with her current position was only that; it cannot be read to be a resignation from employment with the employer, as the employer has tried to do. (1)   Nor can the employe's delay in seeking a transfer be considered conduct inconsistent with an intent to continue the employment relationship. The employe knew only as of August 23 that a replacement had been found for her position. At that point, the vice-president told the employe she had two options, both of which were other positions with the employer. The employe acted on that information in a week's time, a week which included the employe getting an actual internal application form, training her replacement in her current position, and being off work with a pinched nerve two days. The employe thus cannot be deemed to have initiated the separation from employment.  Rather, the employer did so when it construed as a resignation from employment the employe's indication of dissatisfaction with her recently-begun assignment.   This makes the separation one at the initiative of the employer and, as such, a discharge.  There is no evidence to suggest, finally, that the discharge was for misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 36 of 1999, the employe did not voluntarily quit her employment, within the meaning of Wis. Stat. § 108.04(7)(a). The commission finds further that, in week 36 of 1999, the employe was discharged by the employer, but not for misconduct for unemployment insurance purposes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance, if she is otherwise qualified.

Dated and mailed February 3, 2000
backema.urr : 105 : 1   VL 1054.01 VL 1054.12

/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 reasoned that the employe's delay in seeking another position (after she expressed dissatisfaction with her current position) was inconsistent with an intent to continue the employment relationship and, as such, a quit by the employe. The commission disagrees; for the reasons stated in the decision, the commission has concluded that the employe's responses were reasonable and timely, and so not inconsistent with an intent to continue the employment relationship.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe quit. The employe did not say that she would continue to work in the new position until she could find another assignment with the employer. She indicated that she would continue to do that work until a replacement was found. She quit the specific position and if there was nothing else for her to do, the employe did not have a job.

For these reasons, I would affirm the administrative law judge's decision.

___________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent asserts that the employe did not say she would continue to work in the new position until she could find another assignment with the employer, that she indicated she would continue in that position until a replacement was found. This is true, but the evidence is clear that the employe was under the belief that she would be transferring either into support or to a position at the employer's headquarters. The employe's statement of dissatisfaction with her new position simply cannot be read as a resignation from employment with the employer. The employe's indication of flexibility with regard to when she stopped working in the new position (she said she would work in it until the employer had found a replacement for her) was no more than a courtesy to the employer; it strains logic to interpret the employe's statements as a quit by the employe.