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

JEREMY J DEPPISCH, Employee

ADVANCED RESTORATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601864WB


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a building restoration business, for about four years as a laborer. His last day of work was January 26, 2001 (week 4).

On January 26, 2001, the employee was working on an interior demolition at a job site which contained a great deal of asbestos. The employee was taking down a plaster wall, when he discovered there was asbestos behind the plaster. He had been working on the wall for approximately four hours at that point. The employee told the foreman, who replied that it was only cardboard and that the employee had to get it out. The employee insisted the material was asbestos and stated he was not touching it. The foreman indicated the employer would not be happy. The employee then stated he was not going to work with the stuff any more and left the job site. The employee and other workers had previously notified the employer of concerns with regard to working around asbestos, but the employer was not responsive. On his way home the employee attempted to call the employer's owner, but was unable to get through to him. The employee then called the employer's secretary, who stated that she would relay a message for him. The employee subsequently left a message on the employer's answering machine stating that he had tried to call the employer several times to let him know he refused to work around the asbestos any longer. The employee stated that the employer might as well lay him off, because he was not working out there anymore, and if there was a problem with that the employer should let him know. The employer never got back to him and the employment relationship ended.

The issue to decide is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee quit because he did not want to work around asbestos. The employee notified both his foreman and the owner of the company of his objections, but the employer took no action to address or alleviate his concerns. Although at the hearing the employer testified that it provided workers with disposable dust masks, the employee and other workers had complained about the masks because it was difficult to breathe through them. The employer also acknowledged that OSHA had issued a report which indicated a hazard with respiratory protection standards. Given these circumstances, there is reason to doubt that the employer provided its workers with adequate protection from asbestos exposure. Where an employee is asked to work in an environment containing a known hazard, the employer is obligated to offer the employee some assurance that the job can be performed safely. In this case, the commission believes that the employer's failure to address the employe's legitimate safety concerns provided the employee with good cause to quit.

The commission therefore finds that in week 4 of 2001, the employee voluntarily terminated his work with the employer, and that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2001, provided he is otherwise qualified.

Dated and mailed July 6, 2001
deppije . urr : 164 : 1 VL 1080.22

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility. The administrative law judge indicated that he considered this to be a close case, stating that he found the employee to be credible and believed the employee had a legitimate basis for concern. The administrative law judge further indicated that he had doubts about the employer's credibility, particularly as it was shown that the employer had falsely represented to the department that it offered the employee other work not involving asbestos. The administrative law judge stated that he had the impression the employer was not complying with the spirit of the law and was trying to get away with what it could. The commission concurs with the credibility impressions of the administrative law judge and believes that the employer's failure to ensure a safe working environment for the employee provided him with good cause to quit.


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uploaded 2001/07/09