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


SHARON K LIVELY, Employe

MONONA WIRE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97004282MD


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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two years as an assembler for the employer, a manufacturer of wire components. The employe's last day of work was June 6, 1997 (week 23), when she terminated her employment.

Approximately six weeks prior to her last day of work, the employe requested time off for two weeks, beginning June 16, 1997 to accompany her husband to the east coast for a family reunion. The employe had already used her paid vacation in 1997 and thus requested an unpaid leave. According to the employe, the employer's human resource assistant and human resource manager initially did not see a problem with the employe's request but ultimately the facility manager would have to approve. However, the employer had to provide the employe with a leave form for the facility manager to review. It did not do so for some time. The employe completed the form requesting leave on May 22, 1997.

Sometime between May 24 and May 30, the employer's facility manager denied the employe's request indicating that things were too busy. The facility manager inquired whether the employe's husband could change the reunion date. The employe explained that that could not be done because reservations had already been made and relatives from all over the country were planning to attend. The employe was told that if she took the vacation her job would be terminated but that she could reapply for consideration as a new employe. The employe made her intentions clear that she would quit if not given the time off. When the situation was clarified, the employe quit on her last day of work, June 6, 1997 (week 23).

The issue for review is whether the employe's quitting meets any statutory exception to the quit/disqualification found in Wis. Stat. § 108.04 (7)(a). The administrative law judge found the employe's quitting was with good cause attributable to the employer based on its substantial delay in processing the employe's request for an unpaid leave. The administrative law judge noted that by the time the employe was given a definite negative reply, she and her husband had relied to their detriment in making their plans.

However, it was the employer's prerogative whether to accept or deny the employe's request for unpaid leave. The commission is unwilling to conclude that the employer's denial in this case amounts to employer fault necessary to support a finding of good cause attributable to the employer within the meaning of Wis. Stat. § 108.04 (7)(b). Just as the employe exercised her right to request an unpaid leave of absence, the employer exercised its right by denying her request. The commission is also unwilling to conclude that the employe relied to her detriment on the employer's representatives. The employe was somewhat responsible for the delay to her response and she should not have made plans until a definite reply had been made by the facility manager. The employe made a personal decision to quit when the employer denied her leave request.

The commission therefore finds that in week 23 of 1997, the employe terminated her employment but not with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04 (7)(b), or within any of the statutory exceptions that would allow benefits.

The commission further finds that the employe was paid benefits in the amount of $3,562.00, for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

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 employe 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 employe is ineligible for benefits beginning in week 23 of 1997, 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. The employe is required to repay the sum of $3,562.00 to the Unemployment Reserve Fund.

Dated and mailed: January 30, 1998
livelsh.urr : 135 : 1  VL 1001.06 VL 1080.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge as to credibility. The commission reverses the administrative law judge's decision because it believes the employe failed to establish employer fault. The commission does not believe the employe relied to her detriment on the employer's response believing the employe should have waited until the employer provided her with a definite response before making plans to take an unpaid leave of absence.

cc:
MONONA WIRE CORP


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