JEANETTE L LULING, Employee
ADECCO NORTH AMERICA LLC, Employer
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 makes the following:
The employee worked three and one-half months as an expediter for the client of the employer, a temporary help service. Her last day of work was April 27, 2001, (week 17), when she was taken off of the assignment.
The employee was working for a client of the employer and was allegedly using the Internet for personal reasons, which was prohibited. The employee was using a wallpaper background on her computer which was common at the workplace.
The employee's supervisor went to the client's location and notified the employee that she was no longer working there because of improper use of the client's computer. The supervisor told the employee in the client's parking lot that the supervisor would no longer handle the employee's placements but if the other supervisors were willing to work with her that would be fine. The supervisor told the employee that she had to call the office. The employee did not call the employer's office for further assignments because the individual she had previously worked with was no longer with the employer.
After being notified that her services for the client were no longer needed the employee changed her voice mail message at the client location to state, "Thank you for calling (the client), land of idiots . . ." The client called the employer and played the message for the employer. At that point the employer determined that it would no longer utilize the employee's services. Two weeks after her last day of work the employer received a resume from the employee through an Internet service. The employer notified the employee at that time that it would no longer use her services.
The employee acknowledged leaving the voice mail message and that it was immature to do so. The employee's explanation was that she was upset at the time. However, the employee maintained that she was no longer working for the employer at the time she left the message and therefore she had not violated any employer policy.
The initial issue to be decided is whether the employee was discharged from her employment or voluntarily terminated her employment. The second issue is whether the separation was for a reason that permits the immediate payment of unemployment benefits.
The commission finds that the employee quit her employment when she failed to contact the employer for another assignment. The employee was not informed on her last day of work that no further assignments would be provided to her. She was simply told that she had to work with other supervisors. The fact that the individual the employee had contacted in the past for assignments was no longer working for the employer did not prevent the employee from calling in for further work. The employee could have asked her supervisor who to contact or just called the employer's office and informed the individual who answered the phone that she had previously worked with someone no longer employed by the employer. The employee therefore quit her employment by failing to contact the employer for another assignment.
The client determined it no longer wished the employee's services. Whether or not the client was correct in its belief that the employee was misusing its computer it was the client's decision that it no longer wanted her services. The employer's actions did not give the employee good cause to quit her employment and the employee failed to establish any reason for quitting that would permit the immediate payment of unemployment insurance benefits.
The commission therefore finds that in week 17 of 2001, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason that constitutes an exception to that section.
The commission further finds that the employee was paid benefits in the amount of $5,634.00 for weeks 18 through 35 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived.
Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5,634.00 to the Unemployment Reserve Fund.
Dated and mailed September 5, 2001
lulinje . urr : 132 : 1 : VL 1007.01 VL 1025
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge did not believe that the employer would have provided the employee with additional work. However, the commission finds that the option was open to the employee and was an alternative to ending the employment relationship. The best way to determine whether the employer was willing to offer the employee further assignments was to contact the employer for additional work. She failed to do so. The commission therefore finds that the employee initiated the separation from employment.
NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.
Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.
Appealed to Circuit Court. Affirmed May 10, 2002.
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