BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

ANNE E. WYMAN-MURPHY, Employee

Involving the account of

WARREN LEE BRANDT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-000252LX


On January 3, 1990, the Department of Industry, Labor and Human Relations, (Department) issued an Initial Determination which held that the employe was discharged for misconduct connected with her employment.  The employe timely appealed. A hearing was held on this matter on February 14, 1990 before an Administrative Law Judge. On February 27, 1990, the Administrative Law Judge issued his Appeal Tribunal Decision reversing the Department's Initial Determination and finding that the employe was discharged but not for misconduct connected with her work, within the meaning of section 108.04 (5) of the Statutes. The employer timely petitioned the Commission for review of the Appeal Tribunal Decision.

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 worked approximately one year as a secretary for the employer, a law firm. On October 24, 1989 (week 43) the employe informed the employer that she was resigning and that her last day of work would be December 22, 1929 (week 51). Upon receiving notice, the employer advertised for a replacement for the employe. After securing a replacement for the employe, the employer discharged the employe or November 28, 1989 (week 48).

The issue upon review is whether the employe quit her employment on December 23, 1989 (week 51) or whether the employer discharged the employe on November 28, 1989 (week 48). If the employe quit, the issue is whether the employe's quitting was for a reason which would allow the payment of benefits. If the employe was discharged, it must be determined whether that discharge was for misconduct connected with her employment.

The Commission has long held that an employer may accelerate the employe's intended date of quitting by discharging the employse. If the employer can establish that the discharge was for misconduct connected with work pursuant to section 108.04(5), the employee is ineligible for benefits from the date of discharge. However, if the employe's voluntary termination is merely accelerated without such a finding, the employe is eligible for benefits until the intended date of quitting. See 1997 U.C. Digest No. 67-1-196, VL 1007.01 pg. 33; Scott v. LIRC & Gem Tool Corp., Milwaukee County Circuit Court, No. 503-227, May 12, 1990, where the court "sub silentio" adopts the principle of "accelerated quit."

On October 24, 1989 the employe provided her employer with notice of her intent to quit on a specific future date (December 22, 1989). While the employe was by no means an exemplary employe, the employe's continued tardiness, inattentiveness and carelessness were tolerated and condoned by the employer throughout the employee's tenure until the employer successfully secured a replacement for the employe. The employer never informed the employe that her job was in jeopardy because of her work performance and behavior. Therefore, the Commission concludes that the employe quit her employment with her employer by noticing her intended date of quitting in December, even though the employer refused to allow her to return to work after November 28, 1989.

Concluding that the employe voluntary terminated her employment in week 51 of 1989, the next inquiry is whether the employe's quitting was for a reason which would allow the payment of benefits, pursuant to section 108.04 (7)(b) of the Statutes. Pursuant to section 108.04 (7)(b), an employe who terminates his or her work with good cause attributable to the employing unit, is eligible for benefits. Courts have held that good cause for quitting must be based upon some fault on the part of the employer and that the employe's reasons for quitting must be real and substantial; that is, the employe's decision must have been reasonable under the given circumstances. See Kessler v. Ind. Comm., 27 Wis. 2d 98(1965).

The employe voluntarily terminated her work because of a permanent relocation many miles away from the employer's law office. Additionally, the employe has a master's degree in education and planned to seek substitute teaching work. The employe's reasons for quitting were personal and not the result of any act or omission on the part of the employer that would constitute fault. Therefore, the Commission concludes that the employe terminated her employment but not for good cause attributable to the employer within the meaning of section 108.04 (7)(b) of the Statutes. Moreover, the employe's quitting does not meet any other statutory exception that would allow the payment of benefits.

The Commission therefore finds that in week 51 of 1989, the employe voluntarily terminated work with her employing unit, within the meaning of section 108.04 (7)(a) of the Statutes, and that such termination was not within any of the exceptions to such section which would permit the immediate payment of benefits.

The Commission further finds that because the quit did not arise until the effective resignation date set by the employe during week 51 of 1989, the employe is eligible for benefits for weeks 48 through 50 of 1989.

The Commission also finds that the employe was paid benefits in the amount of $171 for week 51 of 1989; $168 for weeks 52 of 1989 and week 1 of 1990; $154 for week 2 of 1990; $104 for week 3 of 1990; $77 for week 4 of 1990; $67 for week 5 of 1990; $134 for week 6 of 1990; $171 for week 7 of 1990; $139 for week 8 of 1990; $123 for week 9 of 1990; $112 for week 10 of 1990; $57 for week 11 of 1990; $37 for week 12 of 1990; $26 for week 13 of 1990; $73 for week 14 of 1990; $117 for week 15 of 1990; $81 for week 16 of 1990; $80 for week 17 of 1990; $107 for week 18 of 1990; and $67 for week 19 of 1990 amounting to a total of $2,233 for which she is not eligible and to which she is not entitled, within the meaning of section 108.03 (1) of the Statutes. Pursuant to section 108.22 (8)(a) of the Statutes she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is reversed. The employe is eligible for benefits during weeks 48 through 50 of 1989. Beginning in week 51 of 1989 the employe is ineligible for benefits until seven weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equalling at least 14 times her weekly benefit rate which would have been paid had the quitting not occurred. If the employe requalifies at a later date, her remaining benefits based on employment with the employer shall be reduced by 50 percent, but not below one week' s benefits. (The employe has requalified as of week 20 of 1990.) The employe is required to repay the sum of $2,233.00 to the Unemployment Reserve Fund.

Dated and mailed January 28, 1991
135 : CD6025 MC 627

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


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