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


PAMELA D HUGHES, Employe

MC DONALDS RESTAURANTS OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600985MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about seven months as a crew person for the employer, a fast food restaurant. Her last day of work was on April 1, 1997.

On her last day of work, April 1, the employe notified a supervisor that she had a doctor's appointment on Thursday, April 3, 1997 (week 14), in the a.m. The employe was informed that she had to find a replacement. The employe attempted to find a replacement. She did find one individual but that individual was not allowed to replace her because the individual was also working another shift on that day. The employe was told that she either had to come in or she was fired. She went to her doctor's appointment and not to work. She went in on April 11 to pick up her paycheck and presented a doctor's excuse. The employe did not have a prior attendance problem and her job was not in jeopardy due to her attendance.

The initial issue to be decided is whether the employe voluntarily terminated her employment or was discharged. The second issue is whether she is eligible for unemployment benefits based on her separation from employment.

The commission finds that the employe was discharged from her employment. It was the employer's decision that it did not wish to continue the employe's employment if she attended her doctor's appointment instead of work. That is a decision the employer has a right to make. However, attending a doctor's appointment in lieu of going to work is not inconsistent with continuing employment. The employe did not have prior attendance problems and was absent with prior notice and for a valid reason. The employer has not demonstrated that the employe engaged in an intentional and substantial disregard of its interests.

The commission therefore finds that in week 14 of 1997 the employe did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 14 of 1997 the employe was discharged from her employment but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits as of week 14 of 1997, if she is otherwise qualified.

Dated and mailed: May 22, 1998
hughepa.urr : 132 : 1 VL 1007.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer maintains that the employe was fully aware of the consequences of her action, yet chose not to show up for work and therefore voluntarily terminated her position. The commission disagrees. Failing to report for work due to a doctor's appointment, where the employer has been notified in advance of the doctor's appointment, is not inconsistent with the continuation of the employment relationship. While the employer may inform an employe who will be absent for valid reasons that separation will result, that separation is at the employer's initiation, not the employe's initiation. Accordingly, the commission has modified the appeal tribunal decision to reflect that the employe was discharged by the employer. The employer testified the employe did not have any prior attendance problems. The employe was absent on the last occasion to attend a doctor's appointment. The fact that the employer requires that the employe find a replacement, and the employe was unable to do so, does not evince an intentional and substantial disregard of the employer's interests.

cc: CAROL WEIDINGER
C/O R E HARRINGTON INC


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