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


MICHELLE L CHAPMAN, Employe

OLSTEN HEALTH SERVICES (STAFFING) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607329MW



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 about nine months as a certified nursing assistant for the employer, an operator of a medical staffing business. Her last day of work was September 24, 1999 (week 39), when her assignment ended.

The employer's handbook informed the employe to contact the employer to give notice of her availability during the following week. She failed to do so and did not have any contact with the employer until October 12, 1999 (week 42), after the employer telephoned her on October 11, 1999 (week 42). In the past, the employe had contacted the employer after her assignments had come to an end.

The issue presented is whether the employe terminated her work in week 39 of 1999, the calendar week ending September 25.

Wis. Stat. § 108.04(7)(a) provides that a worker who terminates his or her employment will be ineligible for benefits until four weeks have elapsed since the week of quitting and until the worker earns wages in covered employment in an amount equal to at least four times the applicable weekly benefit rate, unless the worker meets one of the exceptions set forth in the law. A worker may quit by giving notice of quitting, or by word or manner of action which is inconsistent with the continuation of the employment relationship.

In this case, while the employer's policy does not specifically provide that the employe must contact the employer immediately on finishing an assignment, the policy does provide for at a minimum, weekly contact by the employe. Furthermore, the employe had contacted the employer at the end of assignments in the past. The employe was unemployed and it would be reasonable, if she wished to continue the employment relationship, to expect her to contact the employer. The employe failed to do so, and failed to appear at the hearing to explain her position. As a result, the commission concludes that the employe's actions were inconsistent with maintaining an employment relationship, and for unemployment insurance purposes constituted a quitting of her employment.

The employe has not demonstrated that her quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 39 of 1999, the employe terminated her work, within the meaning of Wis. Stat. § 108.04(7)(a) but that her quitting was not for any reason which would allow for immediate benefit payment.

The commission further finds that the employe was paid benefits in weeks 39 through 52 of 1999, and weeks 1 through 6 of 2000, totaling $2177.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 39 of 1999, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $2177.00 to the Unemployment Reserve Fund.

Dated and mailed February 11, 2000
chapmmi2.urr : 145 : 1 : EE 440 VL 1025

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing and he indicated that credibility was not much of an issue, although he thought that the employer's witness may have been exaggerating the interpretation of the rule, given the language of the rule itself. The commission does not reverse the ALJ because of a different interpretation of witness credibility and demeanor, but rather because it reached a different legal conclusion when it applied the law to the facts found by the ALJ. Further, it is not clear to the commission that this was an assignment for a limited time, and thus, it may not have been evident to the employer when the assignment would end, making contact by the employe more important.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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