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

Subject: Mary Kelsey v. LIRC and Stanley Smith Security Inc. Initial Security, (Wis. Milwaukee County Cir. Ct., Case No. 99 CV 008533, April 20, 2000)

Digest Codes: VL 1007  VL 1007.01

The employe began work for the employer as a security guard in August 1998. She had an agreement with the employer for limited availability. She was available to work on Monday, Tuesday and Wednesday nights. She received her assignments by phone. On Monday, May 10, 1999 the employe was offered and accepted an assignment at a nursing home for third shift on Tuesdays and first shift on Saturdays. She worked at that assignment on Tuesday, May 11, 1999. On Wednesday, May 12, 1999 the employer offered the employe a three-day assignment from 3 p.m. to 11 p.m. starting that day. The employe declined the position because she was providing care for her granddaughter. Later that day the employer offer the employe a two-day assignment starting that day at 9 p.m. to 6 a.m. The employe declined the assignment because she did not have transportation. She also declined a second offer given at that time, for the same hours, due to transportation problems. On Friday the employe called the employer to see if she was needed at the nursing home assignment on Saturday. She was told that she was terminated. The commission affirmed an appeal tribunal decision that the employe was ineligible for benefits because she had voluntarily terminated her employment.

Held: The law presumes that an employe is not disqualified for benefits and the burden is on the employer to establish that some disqualifier bars the employe’s claim. The statute must be read as if the word voluntary is part of the body of the section.

Here the commission determined that the employe voluntarily quit because she failed to accept the offered assignments. It relied on the employe’s conduct to determine that she intended to discontinue the employment relationship. The court finds that the record lacks credible and substantial evidence to support that determination. The employe testified that she had an assignment that she was working on and that she expected to work that Saturday. She characterized it as a permanent assignment. When she called the employer she was told that she was fired. That testimony was not discredited by the commission. The evidence established that the employe intended to continue the employment relationship. The employer failed to meet its burden of providing credible evidence sufficient to show that the employe is barred from receiving benefits. The court finds that the record lacks credible and substantial evidence to support a finding that the employe’s conduct demonstrated her intent to leave her employment. Therefore the commission’s determination that the employe voluntarily quit is unreasonable. The court concludes as a matter of law that the employe did not voluntarily terminate her employment.

The matter is remanded to the commission for findings of fact and conclusions of law on the issue of whether the employe was discharged for misconduct.

[LIRC decision following remand and further hearing]

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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