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

Subject: Martha D. Gross v. DILHR and Globe-Union  (Wis. Cir. Ct., Dane Co., November 14, 1973)

Digest Codes: MC 626   VL 1007.01

The employee became unable to work because she was sick. She called in sick for the first 3 days of her illness (Jan 10-12). She then did not call in on her next 5 scheduled work days (Jan 13-14, 17-18). She did call in on Jan. 19 to advise her employer she'd be returning to work Jan. 25. At that time she was advised that she was terminated. The employee then provided the employer with a medical excuse from her doctor dated Jan. 25, stating that she'd been under his care from Jan. 7 and had required hospitalization, and also that the employee's husband had been sick and was hospitalized from Jan. 15 to Jan. 20.

The Appeal Tribunal found a quit because “the employe's actions in continuing to be absent herself from work for more than one week without proper notice to the employer and without requesting a leave of absence in violation of the union contract and the employer's well-established rule were inconsistent with a continuing employer-employee relationship and constituted a quitting.”  LIRC affirmed.

Held: The decision of the commission is REVERSED.

The section of the court's decision addressing the question of whether the employees were terminated or quit is as follows:

The simple issue in this review concerns the question of whether this is a voluntary termination of employment by a worker under section 108.04(7)(a) or whether it is actually a discharge for misconduct under section 108.04(5). The appeal tribunal and the commission found the former, but we think it should have been the latter.

At page 46 of the record, Mr. Rakow, defendants employment supervisor, testified that the basic reason for the termination was as follows:

A:  The case was that she called in the first three days which was proper, the right thing to do, but she did not get an authorized excused absence during the first week, She could have called in everyday and that wouldn't make any difference. If I may just state, counselor, this letter that we receive from her doctor, if we would have received that during the first week there would have been no problem whatsoever.

 Exhibit 2 in the record, which purports to be a company rule, indicates that where an employe is absent for medical reasons, he must submit a doctor"s statement within the first week of such absence. This the applicant neglected to do and did not furnish such a written excuse until she was prepared to return to work on January 25, 1972.

The commission in its brief argues that applicant's failure to submit the written excuse during the first week of her illness amounted to a voluntary termination on her part of her employment. Counsel calls that a “constructive quitting,” whatever that signifies.

The commission, in adopting the findings of fact of its appeal tribunal, first grounded its decision on the union contract which provided that seniority is broken where there is an absence of more than one week without the employe obtaining a written, approved leave of absence or excused absence, The department went on to find that the union contract is implemented by a company rule providing that where an employe is to be absent for more than one week, he or she must obtain a written, approved excised absence or leave of absence within the first week of such absence,

The department summed up it finding that there was a quitting as follows:

“Under all of the circumstances, the employe's actions in continuing to be absent herself from work for more than one week without proper notice to the employer and without requesting a leave of absence in violation of the union contract and the employer's well-established rule were inconsistent with a continuing employer-employe relationship and constituted a quitting. Her quitting was not for any reason that would permit the payment of unemployment benefits.”

There are two serious defects with the reasoning of the appeal tribunal and the commission. First, broken seniority does not constitute a voluntary termination by an employe, or for that matter, a constructive quitting. Broken seniority merely means that a discharged or laid-off employe loses his right to return to the job in order of the seniority he would have had had such seniority not been broken by virtue of the employe's failure to comply with the union contract provision.. Seniority is an important right to an employe, but its loss has no relationship to a voluntary quitting or termination for cause. The term “seniority” or “broken seniority” is not in any way synonymous with a termination, a discharge or a quitting.

Secondly, there was a company rule which provided that where an employe was to be absent for more than a week, he should secure a leave of absence or a written excused absence from a doctor, and failure to comply with this rule could result in termination. Again, we ask, termination by whom? Obviously, the employer. The record indicates that this rule as to written excused absences was not applied uniformly, but that Mr. Rakow could exercise and did exercise discretion in administering this rule, The following testimony, at pages 48-49 of the record, reflects this fact:

Q: Now, you do have some discretion do you not in the exercising of this rule?
A: I do. 
Q: In other words even if a person doesn't comply with the rule br furnishing the report within that first week you can keep him on? 
A: It is possible, 
Q: But you could do it? 
A: Yes, sir.

Further evidence in the record, at pages 54and 55, indicates that Mr Rakow had already decided that applicant was terminated from her employment when she telephoned in on January 19. At that time, applicant asked Mr. Rakow if she couldn't get a doctor's excuse (which, as noted, she later did), but he replied flatly: “It wouldn't do any good.”

Under the circumstances of this record, we find that there is no competent evidence in the record to support the department's finding that applicant's failure to strictly observe the provision in the union contract and the contract rule relating to absences of one week or more constituted a voluntary termination of employment on the part of the applicant.

The cases cited by learned counsel for the department in his brief are clearly distinguishable Dentici v Industrial Comm 264 wis, 181, involved an employe's refusal to accept a reasonable, transfer to a comparable j ob , The court there held that such unreasonable refusal amounted to a voluntary quitting, and we agree, But that case is not at all in point to the case at bar.

Counsel also includes circuit court opinions in Metsa v. DILHR, decided by Reserve Judge Currie on May 7, 1973, and John v. DILHR, decided by the undersigned on February 23, 1973.

In the Metsa case, the ineligible applicant clearly quit his employment and later changed his mind, Here there is no indication whatsoever that applicant ever intended to sever her employment relationship with Globe-Union, a relationship which had extended over a ten year period.

In the John case, there was a clear dispute of fact as to whether the applicant quit or was discharged, and that factual issue was decided against the employe. Secondly, in the John case, the applicant made no inquiry within a reasonable time as to whether his job was still available to him. This fact clearly permitted the department to draw the inference that the was a quitting rather than a discharge In the instant case, the applicant called her employer to advise him as to when she would return as soon as she knew the date. Such conduct certainly does not indicate a voluntary termination or constructive quitting-on the part of the applicant.

In the Court"s opinion, both the examiner and the department decided to treat this case as a voluntary termination rather than a misconduct discharge. Apparently this was done in order to avoid the rather tough requirements of Boynton Cab Co. v. Neubeck, 237 Wis, 249, which construed section 108.04(5) the misconduct discharge section of the Unemployment Compensation Act. There the court held that the term “misconduct” as used in section 108.04(4)(a) (now sec. 108.04(5)) is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional or substantial disregard of the employer's interests or of the employe"s duties and obligations to his employer, on the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, or ordinary neg1ience in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

It would appear that the department is taking the position that voluntary refusal to follow a company rule, regardless of the reason, is tantamount to a voluntary termination or quitting on the part of the employe. We find no reported case so holding.

If the department is correct, the Neubeck rule would be abrogated. An employer could adopt detailed rules re hours, dress, etc. Any violation could be deemed a voluntary quitting, and the issue of discharge for cause would never arise. That this would be a step backward in administering the Unemployment Compensation Law is quite an understatement,

Here the record indicates that Martha Gross, the applicant, had a good or satisfactory work record for some ten years when she failed through negligence, inadvertency or illness, as her doctor stated, to get an excused absence or leave of absence within the first week of her illness. Her inability to timely produce a written doctor's excuse does not in our judgment constitute a voluntary quitting under section 108.04(7)(a). Whether or not it constitutes grounds for a misconduct discharge within the rule of the Neubeck case, supra, presents a different question to which neither the appeal tribunal nor the commission addressed itself.

The findings and decision of the department must be reversed, and the case remanded to the department for further proceedings consistent with these directions for judgment.

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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