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


CRAIG C MEIER, Employe

MONONA CATERING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000171MD


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 the employer, a catering service, for approximately two months as a chef. His last day of work was November 18, 1999 (week 47).

The employe suffers from an anxiety disorder and depression, which rendered him unable to work as of November 19. That day the employe called the employer and left a message with Andrea to notify his supervisor that he was "lost" and would return to work when his health improved. Sometime thereafter the employe ran into a co-worker who told him that his employment had been terminated. The employe had no further contact with the employer.

The first question to decide is whether the employe's separation from employment was a quit or a discharge.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

The employer contended that the employe quit his employment by failing to report to work or provide notice of his absences on November 19 and 20. However, the record does not warrant a conclusion that the employe voluntarily quit. The employe testified that he spoke to someone named "Andrea" on November 19 and told her to let his supervisor know he would return to work when his health improved. The employer's business manager testified that Andrea is her assistant and that Andrea does accept such telephone calls, but indicated that she did not speak with Andrea or the employe's supervisor to confirm whether such a call was placed. Under the circumstances, it appears that the employe did give notice of his absence and informed the employer of his intention to return to work in the future. The employe's actions in this regard were consistent with a desire to continue the employment relationship, and the commission concludes that the employer was the moving party in the separation when it terminated the employment relationship after the employe failed to appear for work on November 20 (week 47).

Having concluded that the employe did not voluntarily quit, the next question to decide is whether he was discharged for misconduct connected with his employment. The employe was discharged for failing to report for work for three consecutive days, after giving notice to the employer that his absences were related to a health condition. No evidence of misconduct was presented.

The commission, therefore, finds that in week 47 of 1999 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed April 4, 2000
meiercr.urr : 164 : 6  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is not the result of a differing assessment of witness credibility, but is as a matter of law based upon the uncontroverted testimony in the hearing record.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While the employe testified "On 11/19/99, I called and left a message with Andrea, to tell Matt that I would return to work when my health improved, but I am lost," I have trouble crediting his testimony. The employe also testified " I last worked 11/18/99 due to my mental medical condition. I had been diagnosed on 11/17 with a stress-related nervous breakdown. I went to work on 11/18. On 11/19, I don't remember that day or several days before 11/17 and several days after. The doctors said it was because of the breakdown. I didn't have any other medical problems then. I have seen the UCB-474. I am an alcoholic, but that had nothing to do with it. The doctor had called Dane County Mental Health to advise them I had to see a psychiatrist. That they shouldn't put my alcoholism over my mental condition. I had blocks of time, 4-5 days, that are missing from my life, for about a month at a time. I don't know what happened." And again, "I kept losing days. I don't know where I was. Blocks of days that would happen from drinking."

Dr. Ecklund began seeing the employe 11/19/99 and he diagnosed the employe with 1. Alcohol abuse and 2. Anxiety disorder vs. depression vs. combination. He indicated that the condition affected the employe by "severe abdominal pain alcohol induced gastritis and underlying anxiety." While the employe testified that his alcoholism had nothing to do with his absences, that is not supported by the medical record.

The employe testified that days are missing from his life but still says he remembered 11/19/99. I don't credit that testimony. Also the employe did not make any effort to contact the employer when he was again able to work. I believe that his conduct is inconsistent with maintaining the employment relationship and a quit.

I would affirm the administrative law judge's decision.

______________________________________
Pamela I. Anderson, Commissioner

cc: MONONA CATERING LLC


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