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


JAMES D JOHNSON, Employee

ALARM DETECTION SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00607820RC


On August 24, 2000, the Department of Workforce Development issued an initial determination which held that the employee quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on November 6, 2000 in Racine, Wisconsin before a department administrative law judge. On November 13, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the record and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately six months as a sales consultant for the employer, a company providing electronic monitoring and alarm equipment. The employee's last day of work was May 26, 2000, following which he was off due to a cancerous tumor in his throat. When he had recovered from the tumor, the employer would only allow him to return to work on a commission-only basis. The commission believes that, as a matter of law, this change in the employee's work conditions gave him good cause to quit his employment, within the meaning of Wis. Stat. § 108.04(7)(b). The commission therefore reverses the appeal tribunal decision.

The first issue is whether the separation was a quit or a discharge. The commission concludes that it was a quit. On July 26, 2000, the employee had spoken by telephone with the employer's human resources representative. She had instructed him to notify his supervisor within two days whether he would be accepting the commission-only position. The employee testified that he did leave a message for his supervisor, but that no one got back to him. This was not sufficient effort on the employee's part to continue the employment. If his first call had not been returned, it was incumbent upon him to make another one. The commission thus agrees with the administrative law judge that the separation was a quit.

The commission disagrees with the administrative law judge's conclusion, however, that the quit was not with good cause attributable to the employer. The employee had been earning $30,000.00 per year (approximately $1,150.00 bi-weekly). His sales were not offsetting his base salary, which led the employer to change the employee's pay structure. In similar circumstances, the commission has held that such a change gave the employee good cause attribute to the employer for quitting the employment. Leischer v. Equitable Reserve Association, UI Dec. Hearing No. 98003370WR (LIRC 1/22/99). In that case, the employee earned $1,000.00 bi-weekly and also was earning an insufficient amount in commissions (in his work as an insurance salesperson). The employer had a written contract allowing it to discontinue the employee's draw. Despite that, when the employer did so and the employee quit the employment, the commission found that the quit was with good cause attributable to the employer. The commission reasoned that the change in remuneration was "a drastic pay cut" and that the employee could not be expected to survive financially on commissions alone (given his poor sales record). In finding for the employee despite the contractual provision which gave the employer the right to change the employee's pay structure, the commission reasoned that the employee should not be penalized for his willingness to attempt employment under potentially unfavorable conditions. The commission also reasoned, finally, that nothing required the employer to have changed the employee's method of remuneration.

In the present case, the employee's circumstances are yet stronger. His salary was greater than that of the employee in Leischer. In addition, in the present case there is no written contract allowing the employer to change the employee's pay structure and, indeed, that was a point of dispute. But even with such a right, the commission has still found that a subsequent quit was with good cause attributable to the employer. The commission therefore finds that, in week 31 of 2000, the employee voluntarily terminated employment with the employer, but did so with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 31 of 2000, if he is otherwise qualified.

Dated and mailed January 4, 2001
johnssj.urr : 105 : 1  VL 1059.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission believes that, as a matter of law, the employer's unilateral change in the remuneration arrangement was a change in the conditions of employment which, as such, gave the employee good cause to quit the employment.

cc: ALARM DETECTION SYSTEMS


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uploaded 2001/01/08