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


TIMOTHY E HUGHES, Employe

MANU TRONICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602104RC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits are allowed, if the employe is otherwise qualified.

Dated and mailed June 19, 2000
hugheti.usd : 132 : 1   VL 1023.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from his employment but not for misconduct connected with his work. The employer argues in its petition for commission review that this separation should be considered a quitting under Wis. Stat. § 108.04(7)(c). The employer maintains that there is no express employe termination element in (7)(c). However, Wis. Stat. § 108.04(7)(c) still requires an intent on the part of the employe to sever his employment relationship or action by the employe that is inconsistent with continuing employment. The employe neither intended to quit nor did he act inconsistent by requesting time off from work due to a medical condition. It was the employer's decision that it would no longer allow the employe to remain off work due to his medical condition. Further, the law contemplates that an employer may make the decision that an employe's inability to continue work may lead to a separation. Wis. Stat. § 108.04(1)(b)1. contemplates that an employer may terminate an employe because the employe is unable to do work otherwise available with the employer. Unfortunately, such statutory section, like Wis. Stat. § 108.04(5), results in the employer's account being charged for employe's unemployment insurance benefits. The commission cannot find that the employe made a voluntary decision to sever the employment relationship here. It was the employer's decision that the employe had to return to work by a particular date or his employment would end. The employer was the moving party in the separation from employment. Accordingly, the commission affirms the appeal tribunal decision.

cc: PERSONNEL PLANNERS INC


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