BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

JUDY NETTESHEIM, Employee

Involving the account of

THE SWISS COLONY STORE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92609237WK


On October 23, 1992, the Department issued an Initial Determination which held that the employe was on a voluntary leave of absence on October 6, 1992.  The employe timely requested a hearing on the adverse determination, and hearing was held on November 16, 1992 in Waukesha, Wisconsin before Administrative Law Judge William McKeown.  On November 2, 1992, Administrative Law Judge McKeown issued an Appeal Tribunal Decision reversing the Initial Determination and holding that the employe was eligible for benefits in week 41 of 1992.  The Department petitioned for Commission review of the Appeal Tribunal Decision, pursuant to its authorization in section 108.09(6)(a) of the Statutes, and the matter now is ready for disposition.

Based on the applicable law, records, and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe works as a sales clerk for the employer, a food store.  Her standard week of work for the employer is two evening shifts per week, totaling nine hours. The issue in this case is the employe's eligibility for benefits in week 41 of 1992, in which she worked only one evening due to her prior request to the employer that she not be scheduled to work on October 6.  The commission believes that the employe's unavailability for work can October 6 must be factored into her overall benefit eligibility for that week, and so reverses in part the Appeal Tribunal Decision and reminds the matter to the Department for recalculation of the employe's week 41 unemployment benefit entitlement.

The primary statute at issue is section 108.04(1)(b)2 of the Statutes, which provides that an employe is ineligible for benefits while on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, whichever occurs first.  In finding the employe eligible for benefits in the week in question, the Appeal Tribunal held that the phrase "leave of absence," in the context of this statute, did not contemplate situations where, as here, an employe has simply asked for and been granted a night off.

The other section of the statutes the Commission believes relevant is 108.04 (1)(a), which provides.

An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the Department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employe. The Department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe.

The point of this provision is to disqualify benefit claimants for those time periods in which there is work available for the claimants but which the claimants do not perform, for personal reasons such as the employe in this case had for asking not to be scheduled to work on October 6, but to penalize the claimants only for that time period. The Commission believes that this notion of proportionate disqualification is fully applicable to situations governed by section 108.04(1)(b)2 of the Statutes, voluntary leaves of absence.  Nothing in the wording of this section of the statutes indicates that an employe should be disqualified from an entire week of benefit eligibility if the employe's leave of absence occupies only part of that week or, indeed, as here, only one day of that week.

The Appeal Tribunal reasoned in part that the employer could have assigned the employe to work another evening in week 41, in holding that the employe's request with regard to October 6 was not a request for a leave of absence.  For the following reasons, though, the Commission believes the employe's request did constitute a request for a leave of absence, within the meaning of section 108.04(1)(b)2 of the Statutes, and so finds.  The employe's normal schedule was to work two evenings per week.  In week 41, she was scheduled to work only one evening, Wednesday, October 7.  The Commission infers that the employe would have worked on October 6 as well, but for the employe's prior request not to be scheduled that night.  The Commission must reject the employe's claim that the reason she was not scheduled on October 6 was her illness the prior week since, for this to be the case, the employe likewise would not have been scheduled to work any other night that week, as she was scheduled to work on Wednesday, October 7.

Regardless of what it is called, though, the crux of the matter is that the employe missed otherwise-available work in week 41, because of her request to have off the evening of October 6.  Sections 108.04(1)(a) and (b)2 of the Statutes together operate to disqualify the employe from benefit eligibility in that week, but only to the extent of the work and wages attributable to her for the evening of October 6.

The last issue, therefore, is the amount of wages attributable to the employe for the evening of work she missed in week 41 of 1992.  The employe would work, on average, 4 1/2 hours per evening. She earned $5 per hour, so her average evening wage was $22.50. The Commission therefore finds that, for the evening of October 6, 1992 (week 41), for purposes of unemployment benefit eligibility, the employe had wages in the amount of $22.50.  Since this finding may have an impact upon the employe's week 41 unemployment benefit entitlement pursuant to section 108.05(3)(a) of the Statutes, the Commission will remand the matter to the Department for redetermination, consistent with this decision, of the employe's week 41 benefit entitlement.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is attributed an additional wage of $22.50 for week 41 of 1992, and the matter is remanded to the Department for redetermination of the employe's week 41 unemployment benefit eligibility.
 

Dated and mailed March 2, 1993.
AA 110 AA 128

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: The Commission did not confer with the Administrative Law Judge before determining to reverse the Appeal. Tribunal Decision. Such conferral is required by the so-called Braun-Transamerica rule where the Commission is considering reversal of an Appeal Tribunal Decision and the demeanor of any witness or witnesses at hearing was a factor in the Appeal Tribunal's decision-making. The Commission's reversal in this case was not due to a different assessment of the credibility of the witness, but rather was due to its belief that, as a matter of law, the employe's request constituted a leave of absence within the meaning of sec. 108.04(1)(b)2 of the Statutes.

 

cc:  Mary Stevens
      Assistant Director, Bureau of Legal Affairs

 


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