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


Subject: Alvin Gezella v. Ostrenga Excavating, Inc. and LIRC, Case 02 CV 1230 (Wis. Cir. Ct., Brown Co., December 20, 2002)

MC 605.07 - Absence, Permission; MC 626 - Discharge, layoff or quit? - generally -- employee who took a planned vacation even after employer told him he could not have time off because of busy schedule, and that he was refusing work and his UC benefits could be affected, told he was no longer needed when he returned - this was a discharge, not a quit, as employee did not intend to quit - discharge was for misconduct

Digest Codes: MC 605.07  MC 626 

The employee worked for the employer as a dump truck driver for about two years. Approximately one month prior to his last day of work he notified the vice-president that he wanted to take some time off to go on vacation. He was told to speak to Mr. Hoffmann, the project manager. The employee then asked Hoffmann for vacation from October 11 through 22, 2001. Hoffmann told the employee he would write the request down on the calendar, and as the time came closer they would see if they could accommodate it. Hoffmann never affirmatively approved the employee's request for vacation.

Approximately two weeks prior to October 11, the employer's owner told him she did not feel he could have the time off because of the employer's busy schedule. However, the employee continued to plan his vacation and, on October 10, he told the owner he was leaving the following day. The owner responded that he was needed at work and further stated that he was refusing work and that it could affect his unemployment benefits. The employee went on vacation as planned. When he returned he called the employer to ask if there was any work, and was told he was not needed because the employer had hired a new driver.

The appeal tribunal found that the employee was not aware of the fact that he would be fired if he went on vacation, and allowed benefits. The commission reversed, finding that a reasonable person would have understood that going on vacation under these circumstances would result in a discharge

Held: The commission's finding of misconduct is affirmed. The court found credible and substantial evidence to support the commission's factual inferences, and indicated that it would not attempt to substitute its judgment for the commission's judgment.

[LIRC decision]


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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