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

DANIEL C KLINE, Employe

LAUB & HORTON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601736MW

On February 9, 2000, the Department of Workforce Development issued an initial determination which held that the employe's quit of employment 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 March 15, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On March 24, 2000, 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 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case was last employed as a vice-president and corporate information officer for the employer, a multi-line insurance agency. His last day of work was October 15, 1999 (week 42), and the issue is whether the employment separation which occurred at that time was a quit by the employe or a discharge by the employer. The commission concludes that the separation was a discharge, and so reverses the appeal tribunal decision.

The employe performed his services under contract with a predecessor corporation which was modified in November of 1996 to provide him the opportunity to increase his salary up to $100,000. Subsequently, there was a change of ownership of the corporation. He continued to perform his services for the above employer, receiving annual raises. In June of 1999, management personnel of the employer scheduled a meeting for the employe to attend. At that meeting, the employer's personnel told the employe that the relationship was not what had originally been planned. The employer's personnel requested that the employe and employer end their relationship. The employe did not disagree, and offered to terminate his services in the employer's behalf in 60 days. The employer and employe ultimately agreed that October 15, 1999 would be the employe's last day of work.

In cases like this, that is, where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge one looks for the party which initiated the ultimate separation. In this case, the commission believes it was the employer. The employer called the June meeting with the employe; at the meeting, the employer indicated to the employe that the employment relationship was not working out; finally, the employer suggested that it end the employe's and their relationship. The employe's subsequent offer to cease performing services for the employer must be looked at in the context in which it occurred. That context was a meeting in which the employer essentially told the employe that their employment relationship would be ending. This makes the separation at the impetus of the employer and, as such, a discharge by the employer and not a quit by the employe. Finally, the employer has not alleged that the discharge was for misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 42 of 1999, the employer discharged the employe 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 42 of 1999, if he is otherwise qualified.

Dated and mailed May 16, 2000
klineda . urr : 105 : 6  VL 1007.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission has adopted the same factual scenario used by the appeal tribunal. The commission disagrees with the legal conclusion that set of facts points to, however.

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