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


BRENDA J LUDWIG, Employe

MORAINE PARK VOCATIONAL TECHNICAL ADULT EDUCATION DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402609AP


On October 15, 1997, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing immediate eligibility for unemployment benefits. The employe timely requested a hearing on the adverse determination, and hearing was held on November 10, 1997 in Appleton, Wisconsin, before a department administrative law judge. On November 13, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked part time for approximately ten years as a child care specialist for the employer, a technical college. Her last day of work was October 3, 1997 (week 40) and the issue is whether her quit of that employment was for a reason constituting an exception to the benefit disqualification of Wis. Stat. § 108.04 (7)(a). The commission believes that it was and so reverses the appeal tribunal decision.

The employe worked 24 hours per week for the employer. In April of 1996, she began working full time for another employing unit, Tecumseh Product Co. Thus, the employe was now working approximately 64 hours per week, and she continued to do so for almost a year and a half. On September 3, 1997, she informed the employer she was quitting her employment effective October 3, 1997. On September 8, 1997, the employe provided written resignation. The employe's position was filled in-house on September 11. On September 24, 1997, her other employing unit laid her off. The employe did not ask the employer if she could remain working for the employer. Therefore, her last day of work was October 3, 1997.

Generally, an employe is disqualified from immediate benefit eligibility if the employe quits an employment. The disqualification does not apply, however, to an employe who terminates his or her work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employe terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week. The administrative law judge reasoned that, since the employe's last day of work was not until October 3, she had not terminated her work with the employer before receiving notice of termination from Tecumseh Products. The commission disagrees. The employe gave two notices of the quit, both of which were substantially prior to her receiving notice of her lay off from Tecumseh Products. In addition, the employe's position was filled by September 11, which again was approximately two weeks before her notice of layoff from Tecumseh Products. Further, even the Department of Workforce Development requires only that the employe have given notice of the quit prior to receiving notice of termination of the other employment. Wisconsin Unemployment Compensation Manual, Vol. 3, Part VII, ch. 1, p. 76. Finally, the administrative law judge's reasoning has the effect of penalizing an employe who is concerned enough for the employer's interests to give some notice of the employe's quit.

The commission therefore finds that, in week 40 of 1997, the employe terminated her work in one of two concurrently held positions, at least one of which consisted of more than 30 hours per week, before receiving notice of termination from her full- time employment with Tecumseh Products, within the meaning of Wis. Stat. § 108.04 (7)(o).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 40 of 1997, if she is otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed: January 23, 1998
ludwibr.urr : 105 : 7 VL 1020

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

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. Such conferral is required before the commission reverses an appeal tribunal decision because of a differing credibility assessment from that made by the administrative law judge. Such is not the case here. Rather, the commission believes that, as a matter of law, it is only the notice of the quit which must precede the notice of termination under Wis. Stat. § 108.04 (7)(o). As indicated above, this is consistent with department practice. As a policy matter, it also encourages employes to give notice to employers of their quits of employment. Finally, when an employe gives notice of a quit and the employer accepts that notice, the employer is entitled to hold the employe to the quit and the department and commission enforce the quit. For all these reasons, the commission believes it is only the notice of the quit which must precede the notice of termination under (7)(o).


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