EUGENE D DITSCH, Employee

GENESIS PAINTING, Employer

On December 16, 2000, the Department of Workforce Development issued an initial determination which held that the employee quit his work with good cause attributable to the employer. The employer filed a timely request for hearing on the adverse determination, and hearing was held on January 26, 2001 in Madison, Wisconsin before a department administrative law judge. On February 1, 2001, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse 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:

The employee worked approximately a year and a half as a painting supervisor for the employer, a corporation engaged in the operation of a painting business. His last day of work was November 15, 2000 (week 47), after which the employee performed no more work for the employer. The issue in the case is the nature of the resulting separation from employment; the commission concludes that it was a quit, but that the quit was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The employer would bid jobs, and then assign the employee and his painters to do the work. Although the employee himself was not an estimator, he would meet at job sites with the employer's estimator to discuss technical aspects of the work necessary for the estimator to be able to properly bid on jobs.

The job which led to the separation was a condominium complex upon which the employee would be doing painting work. The employee met with a representative of the complex on Monday, November 13 to discuss the job. The employee told the representative that the siding on the building was dry rotted, that the gutters had to be rehung and down spouts reconnected. The employee told the representative that he could not do that portion of the job, that she would need a siding crew for that work.

The employee still scheduled himself to meet the employer's estimator at the job site on Wednesday morning; the estimator wanted to know whether the painting work could be done with a 40-foot ladder, or whether the employee would need to use a lift. The employee arranged with the estimator to meet at the employer's office on Wednesday morning, in order to load a 40-foot ladder onto the employee's truck and take it to the job site. When the employee first arrived at work, the estimator was not there, at which time the employee went to another job site. He spoke by telephone with the estimator, who told the employee he would call the employee so that the employee could meet him at the office. The employee returned to the office at approximately 10:15 a.m., without having heard from the estimator. The estimator was at the office, but made no attempt to assist the employee in loading the ladder onto the top of the employee's truck, at which point the employee left the office.

The employee had other projects for the employer that he was working on at the time. He did not work on any of those projects on Thursday or Friday, November 16 or 17, however, which leads the commission to agree with the administrative law judge's conclusion of quit. Specifically, the employee's failure to do any work for the employer after he left the employer's office on Wednesday morning, November 15, was conduct inconsistent with an intent to continue the employment relationship and, as such, a quit.

At the same time, however, the commission concludes that the employee's quit was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b). Specifically, the employer's failure to provide needed assistance to the employee gave the employee good cause attributable to the employer to quit the employment. In the employee's telephone conversation with the estimator on Wednesday morning, he had told the estimator he would be unable by himself to put the ladder on top of the van to take it to the job site. In other words, he was going to need the estimator's assistance. The job site itself was on a hill, and the employee also would need assistance in setting up and maneuvering the ladder, given the time of year and weather conditions. Instead, the employer provided the employee no assistance whatsoever, even in loading the ladder on top of his truck. In addition, the employer had failed to provide necessary assistance to the employee for another job, a job which required the employee to carry plate glass up his ladder to an upper-story window. The employee had asked for assistance with regard to that job approximately three weeks previously but, as of November 15, the employer had not provided it. In short, the employee needed assistance in loading and maneuvering the ladder, the employer knew the employee had to have that assistance, it was not safe for the employee to perform the work in question without that assistance, and the employer nonetheless failed to provide the employee the necessary assistance and at least on one previous occasion, the employer again had failed to provide necessary and asked for assistance to the employee for a project the employee was working on for the employer. These failures by the employer constitute good cause for the employee's quit of his employment.

The commission therefore finds that, in week 47 of 2000, the employee quit his employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance, if he is otherwise qualified.

Dated and mailed July 6, 2001
ditsceu . urr : 105 : 1  VL 1080.01  VL 1080.22 

/s/ David B. Falstad, Chairman

/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 disagreement with the administrative law judge is one of law; the commission concludes that the employer's failures to provide assistance to the employee gave the employee good cause, as a matter of law, to quit his employment.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/07/09