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


MARILYN D WHITE, Employe

CO-STAFF CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001681JV


On March 7, 2000, 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 April 10, 2000 in Janesville, Wisconsin before a department administrative law judge. On April 14, 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 worked approximately 10 months as a laborer in two assignments for the employer, a temporary help agency. Her last day of work was January 28, 2000 (week 5), and the issue is the nature of the separation which occurred at that point. The commission believes the separation is most properly characterized as a suspension by the employe because of her unavailability for work in Janesville, and that the proper statute for resolution therefore is Wis. Stat. § 108.04(1)(b)1 (and not the quit statute). The commission therefore reverses the appeal tribunal decision and remands the matter for investigation of the employe's availability for work within the meaning of Wis. Stat. § 108.04(2)(a).

The employe's second assignment began on November 2, 1999, and was in Janesville. The employe, who lives in Beloit, was told that transportation would be provided when she took the job, and there were statements in the employer's newspaper advertisements to that effect. Afterwards, the employer told employes that the transportation could be withdrawn if the vans were "misused," that is, if employes continued to smoke, eat, or drink in them (which was a violation of the employer's policies). Although there is no evidence to indicate that the employe violated any of these rules, other employes did and so the employer discontinued the vans on or about January 15, 2000. The employe thereafter had difficulty getting to the Janesville assignment, and eventually abandoned it on January 28, 2000. The employe's car had broken down, a friend's car was no longer available, and it was inconvenient for her to ride every day with her supervisor.

In finding a quit, the administrative law judge reasoned that the employer had not guaranteed transportation and that the employer's provision of transportation was subject to condition, condition breached by co-workers of the employe. The record indicates, though, that the employer in fact had guaranteed transportation to the Janesville work site. As indicated above, the employe had been told that transportation would be provided when she took the job, and the employer conceded that statements to that effect were in its newspaper advertisements. The employer did not assert that individuals were told at hire that transportation would be provided, but subject to certain conditions. According to one of the employe's supervisors, notes were attached to employes' checks indicating that the transportation could be withdrawn if the vans were "misused." Any such notice, attached to payroll checks, of necessity could only have occurred after the employment relationship had begun. The evidence thus does not establish that loss of transportation due to misuse of the employer's vans was part of the employment contract between the employe and employer.

For the above reasons, the commission does not believe the employe's failure to have transportation to the Janesville work site is properly characterized as a quit of employment. Rather, the commission believes the proper statute for resolution of this case is Wis. Stat. § 108.04(1)(b)1 which concerns suspensions of employment because of inability to do, or unavailability for, suitable work otherwise available with the employer. Under this statute, the suspension itself creates no disqualification from benefit eligibility; an additional requirement for benefit eligibility, though, is that a claimant be generally available for and able to perform suitable work in the claimant's labor market. The commission is remanding the matter to the Department of Workforce Development for consideration of that issue, since it is not properly before the commission at this time. The commission therefore finds that, in week 5 of 2000, the employe's employment was suspended by the employe because the employe was unavailable for suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is not disqualified from unemployment insurance eligibility because of her suspension of employment with the employer in week 5 of 2000. This matter is remanded to the

Department of Workforce Development for investigation of the employe's general availability for work as of week 5 of 2000, within the meaning of Wis. Stat. § 108.04(2)(a).

Dated and mailed June 1, 2000
whitema.urr : 105 : 2   AA 120

/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 case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission believes the circumstances more closely fit Wis. Stat. § 108.04(1)(b)1 than Wis. Stat. § 108.04(7).

cc: CO-STAFF CORP


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