Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Joseph Gagliano v. LIRC and Boucher Nissan of Waukesha, Case 13-CV-10254 (Wis. Cir. Ct., Milwaukee Co., May 27, 2014)


Digest Codes: VL 1007.05   BR 335.04

The employee, a sales representative, presented a doctor’s note that he could work only under certain restrictions. Shortly thereafter, he received a letter from the employer’s insurance company that noted his employment had been terminated. The employer itself gave no indication that the employee had been terminated. The employee was then absent for all of his next scheduled days, often without notice. He left very-early-morning voicemails on two days saying he would be absent due to illness. The employer tried to reach him on his cell phone, but received a message that the line was disconnected.

An Initial Determination found that the employee quit. An ALJ reversed, reasoning that the employee was terminated when he received the letter from the employer’s insurance company. On appeal, LIRC reversed the ALJ and found a disqualifying quit. LIRC reasoned that because the initial notice came from the insurance company, not directly from the employer, the employer never told the employee he was discharged. The employee never raised the matter of the insurance company letter with the employer or took steps to clarify its meaning. Instead, he left voicemails at times when he knew no one was at the dealership to answer his calls, and he eventually stopped showing up at all. This conduct was sufficient to show his intent to quit.

Held: LIRC’s decision is AFFIRMED.

The Court will give LIRC great weight deference because it has frequently been called upon to interpret the statutory scheme found in Wis. Stat. § 108. 04(7).

Disregarding documents submitted by the employee which were not made part of the hearing record below, the court decides that LIRC reasonably concluded that the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108. 04(7)(a).

The employee violated the company’s absentee policy, being absent without notice more than ten times in the month his employment ended. When he did contact the employer, he did so at unreasonable hours. His failure to contact the employer or to show up for work constituted conduct “inconsistent with the continuation of [his] employment relationship.”

The employee’s argument that he received information from the employer’s insurance company indicating that he was terminated, is unpersuasive. The employee continued to work after receiving the notice. He also did not try to clarify its meaning. Instead, he continued to call into work as if he was still employed, and the employer continued to log and inquire about his absences as if he was still employed.

It is the employee’s responsibility to clarify ambiguities in the employment relationship; the employee failed to do so. The letter the employee received from the employer’s insurance company would give any employee pause and cause him to question the status of his employment relationship. However, the employee did not address the notice with anyone at the employer. To the contrary, he continued to work and, sometimes, inform the employer of his planned absences as if he was still employed.

LIRC also reasonably concluded that the employee was not entitled to waiver of his benefits overpayment.

Generally, erroneous benefits payments must be repaid by the claimant. However, that may be waived if the overpayment was the result of departmental error. Here, the employee received benefits because of the ALJ’s decision. When LIRC determined that the employee voluntarily resigned and was not entitled to benefits, it ordered that he repay the overpayment. LIRC found the employee was not entitled to a waiver because the overpayment was not the result of departmental error. Wis. Stat. 108. 22(8)(c)(2) specifically indicates that if a decision is amended, modified, or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error. This makes clear that LIRC’s reversal of the ALJ’s decision is not a basis for waiving the employee’s repayment.


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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