BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

MICHELLE A VANDE CASTEELE, Employee

Involving the account of

LINDENGROVE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92608438WK


On September 18, 1992, the Department of Industry, Labor and Human Relations (department) issued an initial determination. The initial determination held that in week 36 of 1992 the employe voluntarily terminated her full-time employment when she requested a reduction in hours to attend school, with the employer's permission, and therefore quit but not for a reason which would allow the immediate payment of benefits. The employe timely appealed and a hearing was held before an administrative law judge. The appeal tribunal decision reversed the department's initial determination and found that the employe did not voluntarily terminate her employment with the employing unit, within the meaning of section 108.04 (7)(a), Stats. The employer timely petitioned the commission for review of the appeal tribunal decision.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately one year as a restorative aide for the employe,, a company engaged in the nursing home business. At the time of the hearing the employe was still employed by the employer.

The employe testified that at the time of hire it was her understanding that if she was accepted into the physical therapy program at MATC she would be allowed to reduce her full-time hours to part-time hours. The employer agreed and even reimbursed part of the employe's tuition upon enrollment.

The issue is whether the employe voluntarily terminated her employment when she returned to work part-time. More specifically, does the employe's voluntary hourly reduction from full-time to part-time work constitute a quit and if so, does the employe's quitting fall within any exception to section 108.04 (7)(a), Stats.

It is departmental policy to consider reduction in hours based on an employe's request for such reduction to be a quit. See departmental Benefits Operations Manual part 7, volume 3, chapter 1, page 93, which provides that when an employe's request to reduce hours is granted, the employe is considered to have severed the employment relationship. Included in this category of voluntary termination is an employe who transfers from permanent full-time to permanent part-time work. .

The commission addressed this issue in Lacy v. Boston Store, LIRC 2/4/92.   In Lacy, the employe reduced her 40 hour per week full-time job to 24 hours per week. The commission determined that an employe holding a single, full-time job who voluntarily reduced her hours to part-time hours in effect quits the full-time work and begins new work in part-time employment. Treating the voluntary transfer from full-time work to part-time work as a quit is consistent with the general rule that when an employe or an employer changes the terms of the underlying employment contract, the party terminates the employment relationship and begins a new one. The commission recognizes that this situation is complicated by the agreement between the employe and the employer that the employe could reduce her hours to attend school. Nonetheless, the commission is unwilling to make an exception to the general policy reflected in Lacy. Although the employe's reasons for requesting the reduction are admirable, the fact remains that the employe personally chose to reduce her full-time hours to part-time hours in order to attend school. Therefore, the commission concludes that the employe voluntarily terminated her work with the employing unit in week 36 of 1992, within the meaning of section 108.0 (7)(a), Stats., and that this quitting was not within the meaning of any statutory exception that would allow for the payment of benefits.

The commission further finds that the employe was paid benefits in the amount of $87 for week 36, $64 for week 37, $41 for week 38, $87 for week 39 and $131 for week 40 of 1992, totaling $410, for which she is not eligible and to which she was not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a), Stats., she is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 36 of 1992 and until four 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 equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $410 to the Unemployment Reserve Fund. The employe has requalified and is eligible as of week 41 of 1992.

Dated and mailed June 10, 1993
135 : CD3519  VL 1039.09

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


NOTE: This reversal is as a matter of law. The commission did not confer with the administrative law judge and does not base its reversal upon any credibility assessment different from that of the administrative law judge. The commission believes that the result here accurately reflects departmental policy regarding voluntary reductions from full-time to part-time work. When an employe or an employer changes the terms of the underlying employment contract, the party terminates the existing employment relationship and begins a new one. The commission does not believe the facts in this case constitute an exception to this general rule.


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