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


DARRYL R SLENNES, Employee

CEDA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00201429EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about five months performing cleaning duties for the employer, an industrial cleaning service. His last day of work was April 19, 2000 (week 17), when he terminated his employment.

The employee cares for his two young children during evening hours while his wife works at a second-shift job. At the end of his employment, the employee was told that he was going to be assigned to work in International Falls, Minnesota, some 200 miles from his ordinary workplace in Superior, Wisconsin. He was told that the work in International Falls could last up to two weeks. He explained that he could not perform this work because of his childcare responsibilities. The employer informed him that his options were to either do the work in International Falls or else find another job. In response to this, the employee left work, thereby terminating his employment.

The issue to be decided is whether the employee voluntarily terminated his employment for any reason permitting the immediate payment of unemployment benefits.

An employee who voluntarily terminates employment is required to requalify for benefits unless the quitting falls within some statutory exception to the quit disqualification of Wis. Stat. 108.04(7)(a). There is a provision which allows an employee to quit with good cause attributable to the employing unit and receive benefit payment. Wis. Stat. 108.04(7)(b). However, that statutory section requires that the quitting be with good cause attributable to the employing unit. That phrase does not mean that an employee may quit with "good cause" and be eligible for benefits. The good cause must be attributable to the employer. "Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson, 94 Wis. 2d at 120 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler, 27 Wis. 2d at 401.)

The commission finds that the employee has not established good cause attributable to the employer for terminating his employment. The employee maintained that at the time of hire he informed the employer that he could not travel out of town and the employer assured him that he would not be called on to do so. He further maintained that he had noted this on his job application. However, the employee's job application contains no notation that he was unwilling to travel. In addition, the employer made no notation of this as being a condition of the employee's hiring. Had there been such a condition, the employer's practice would have been to note this on the job application. The employee did not have an agreement with the employer at the time of hire that he would not be required to travel.

Further, the out-of-town assignment was only going to last for up to two weeks. This would involve a change of a condition of employment but it was a temporary change. The department's policy is that changes in conditions of work of relatively short duration, defined as one month or less, to provide help in temporary or emergency situations, do not fall within the definition of "new work." See Bureau of Benefits Manual, Vol. 3, Part 7 Ch. 1, p. 87. The commission has likewise held that changes based on valid business reasons that last less than 30 days do not materially alter the employment relationship to justify finding a quit with good cause attributable to the employer. See Zurawski v. A & E MFG Co., UI Dec. Hearing No. 96602067 (LIRC May 6, 1997). The commission's reasoning has been upheld at the circuit court level. In Jean M. Nayes v. LIRC, Manitowoc County Cir. Ct., Case No. 93-CV-373, August 4, 1994, the employee worked the night shift in the employer's obstetric unit. The employer was closing that unit and the employee was temporarily transferred to the emergency room. Because of concerns raised regarding the employee's ability to handle the job, she was required to participate in a three month training program on second shift and would also lose a $.50 per hour shift differential. The employee quit her job because the transfer to second shift would require her to obtain childcare. The commission found that the employee did not have good cause for quitting based on a proposed three month transfer to second shift since it was temporary in nature and also because the wage reduction was not substantial. The court affirmed the commission reasoning that the economic costs to the employee were not unreasonable when balanced against the employer's legitimate interests and the fact that the transfer was for no longer than three months.

The commission therefore finds that in week 17 of 2000 the employee voluntarily terminated his employment within the meaning of Wis. Stat. 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $2398.00 for weeks 29 through 41 of 2000, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2000, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2398.00 to the Unemployment Reserve Fund.

Dated and mailed February 9, 2001
slennda.urr : 132 : 1 :  VL 1080.266

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law job found no reason to disbelieve the employer's testimony that there was no reference to travel on the job application and had there been an agreement that the employee would not have to travel it would have been noted on the application. The commission does not disagree with the administrative law judge's credibility assessment but reverses because it reaches a different legal conclusion when applying the law to the facts of the case.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: CEDA INC


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uploaded 2001/02/09