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


MARY N KELSEY, Employee

INITIAL SECURITY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604303MW


The Labor and Industry Review Commission found that the employee voluntarily quit her employment and that the quitting was not for any reason constituting an exception to Wis Stat. 108.04(7)(a). Unemployment benefits were denied. The employee appealed the commission's decision to the Milwaukee County Circuit Court. The court concluded as a matter of law that the employee did not voluntarily terminate her employment under Wis. Stat. 108.04(7)(a). The court remanded the matter to the commission to determine whether the employee was discharged for misconduct pursuant to Wis. Stat. 108.04(5).

The commission has reviewed the the record and the evidence submitted to the administrative law judge. Based on its review, and pursuant to the decision of the circuit court, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee began working for the employer in August 1998 as a security officer. The employer is in the business of providing a security guard service. On May 10, 1999, the employee accepted an assignment from the employer to work at a nursing home on Tuesdays and Saturdays. She worked at the nursing home on Tuesday, May 11, 1999. That was her last day of work for the employer.

On May 12, 1999, a field supervisor for the employer contacted the employee by telephone and offered the employee an assignment at Badger Truck. The assignment was to start at 3:00 p.m. that day and was from 3:00 p.m. to 11:00 p.m. It was a three-day assignment and the pay was $7.50 per hour. The employee told the supervisor that she could not accept that assignment because she was providing care for her granddaughter.

The supervisor called the employee again later that day and offered the employee a second assignment. That assignment was at Saturn of Milwaukee, a car dealership. It was to start at 9:00 p.m. on that day and last until 6:00 a.m. the next morning. The assignment was for two days and was given to the employee at about 1:00 p.m. The employee refused the assignment and told the supervisor that she had to wait for her daughter to bring the daughter's vehicle home and that she needed to arrange that in advance.

The supervisor then offered the employee a third assignment at Hub South, a car dealership. That assignment was also to start at 9:00 p.m. that day and last until 6:00 a.m. It was a two-day assignment and the rate of pay was $7.50 per hour. The employee told the supervisor that she could not accept that assignment either because of the lack of transportation.

On Friday, May 14, 1999 the employee called the employer and asked if she needed to work on Saturday at the nursing home. She was told that her employment was terminated.

The evidence in this record does not establish that the employee's discharge was for misconduct. The employee had accepted an assignment which was to have continued after her employment terminated. She had valid reasons for refusing the assignments on May 12, 1999. The employee was not notified that her failure to accept those assignments would result in the termination of her employment.

The commission therefore finds that in week 20 of 1999, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment benefits beginning in week 20 of 1999, if she is otherwise qualified. This matter is remanded to the department to determine whether the employee was with due notice called on by her current employer to perform available work, whether the employee was available for that work and the amount of wages she could have earned had she performed all the available work in week 20 of 1999, unless otherwise resolved.

Dated and mailed April 6, 2001
kelsema . urr : 160 :  VL 1007.01  VL 1025  VL 1035

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc:
ATTORNEY CHRISTINA LYNN PIEL


[Circuit Court decision summary]

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uploaded 2001/04/09