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


JUAN R SOWARD, Employe

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99003376MD


On August 28, 1999, the Department of Workforce Development issued an initial determination which held that the employe's quit was not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse determination, and hearing was held on October 7, 1999 in Madison, Wisconsin before a department administrative law judge. On October 18, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately ten months as a sales clerk for the employer, a discount merchandise store. His last day of work was July 8, 1999, and the issue is whether the subsequent separation from employment was a quit or a discharge. The commission concludes that it was a discharge by the employer, not for misconduct for unemployment insurance purposes and so reverses the appeal tribunal decision.

The employe's schedule essentially was to work Thursdays, Fridays, and Saturdays. After his work on Thursday, July 8, the employe found out that he would have to go to Milwaukee to retrieve his nine-month-old son. On July 9, the employe telephoned an assistant manager, Rick, and told him he would be absent the rest of that week due to family problems. Rick told the employe he would let the employe's department know; the employe also indicated there was a possibility he would need additional time off and, as to that matter, Rick instructed the employe to talk to his own department manager.

On July 12, the employe did telephone his department manager, Shannon, and told her that he was scheduled to work that week but needed to take that time off. The employe also indicated that he might need more than one week off. Shannon told the employe that, if he needed more than that week off, he would have to call and get approval from the store manager, Mr. Schneckloth. The employe was absent that week, and so missed his shifts on July 15, 16, and 17.

At the beginning of the following week, the employe again called in and spoke with a Chris Johnson, who was the store's co-manager. This is a manager trainee position the employer uses for training store managers. The employe was calling to indicate that he did not need additional leave, that he was ready to return to work. Johnson told the employe that he did not think the employer wanted him to return to work, that because of his attendance problem there was no need for him to return. He also told the employe that, when he picked up his check, he would get an exit interview. This conversation occurred on either July 20 or 21 (week 30).

The separation from employment was at the impetus of Mr. Johnson, and so was a discharge by the employer and not a quit by the employe. An employe who has been discharged is ineligible for unemployment insurance only if the discharge was for misconduct for unemployment insurance purposes. Misconduct essentially is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's being off work after July 8 does not meet this standard. His first absences were with the approval of one assistant manager. His absences the following week were with the approval of his direct supervisor. Following those absences, the employe attempted to schedule his return to work, but was not allowed to do so by the employer's co-manager.

The commission therefore finds that, in week 30 of 1999, the employe was discharged but not for misconduct for unemployment insurance purposes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 30 of 1999, if he is otherwise qualified.

Dated and mailed April 19, 2000
sowarju.urr : 105 : 3  MC 626

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The administrative law judge found that the employe perceived he had been notified by the manager/trainee that his employment had been severed because of attendance problems. The evidence from the hearing indicates, though, that the manager/trainee in fact did sever the employe's employment. He told the employe that, because of his attendance problem, there was no need for him to return to work and that, when he picked up his check, he would get an exit interview. This language constitutes a discharge from employment.

The administrative law judge also found that, based upon a female manager's comments to the employe the week after the discharge, there was some uncertainty as to the employe's employment status and that a meeting needed to be arranged between the employe and the store manager. The evidence indicates, though, that the manager only said that she would talk with the store manager and try to arrange a meeting. The employe had gone to the store to return his badge, at which time he spoke with her. She had asked him why he had quit; he told her he had not quit, but had been told not to come back, by Mr. Johnson. She had told the employe that that was not right, and that she would talk with the store manager and try to arrange a meeting. The employe subsequently tried to telephone her three or four times and, in addition, had talked to her twice when he went to the store to shop (while she was cashiering). She had told him that she had been busy and that Mr. Schneckloth had been on vacation. Eventually, the employe gave up trying to meet with Mr. Schneckloth.

Even if there were some uncertainty as to the employe's employment status, by the point in time the employe had initiated several attempts to speak with management personnel about his job, the burden had shifted to the employer to respond in some manner to the employe's attempts. Regrettably, the employer did not do so.

cc: WAL MART


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