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

ROBBIN D BECKER, Employee

DAYS INN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01003870MD


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 the employer, a motel, for about a year and a half as a part-time cook in the employer's restaurant. His last day of work was May 25, 2000 (week 22).

During the course of his employment, the employee worked for the employer two or three days a week and played in a polka band on the weekends. Prior to his last day of work, the employee told the employer he was going on tour with his polka band for an indefinite period of time. The employee indicated he would be gone at least two months, and maybe longer. The employer told the employee to let it know when he returned, and if there was work available it would put him back on. The employee's last day of work was May 25, 2000, after which the employer hired another worker to fill his position.

In late July of 2000 the employee returned from his tour and contacted the employer to see if any work was available. The employer told the employee the only work it had available was on weekends. The employee indicated he did not want to work weekends because of his polka band.

The first question to decide is whether the employee's separation from employment was a quit or a discharge.

The concept of voluntary termination is not limited to the employee who says, "I quit." Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119, 287 N.W.2d 763 (1980). Rather, the courts have consistently held that an employee can show an intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson, 94 Wis. 2d at 119; Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963).

In this case the employee left his job for an extended period of time without having requested or been granted a leave of absence. The employer did not promise to hold the employee's job open for him, and made it clear to the employee that his ability to return to work for it would be conditioned on the availability of work at the time of his return. Given these circumstances, the commission believes that the employment relationship was severed in week 22 of 2000, and that the employee was the moving party in the separation.

Having concluded that the employee quit, the next question to decide is whether his quitting fell within any statutory exception permitting the immediate payment of benefits. The employee's quitting under the circumstances described above does not fall within any of the enumerated exceptions.

A second issue presented in this case is whether the employee received a bona fide offer of work from the employer in late July of 2000 and, if so, whether he had good cause for refusing that offer of work.

The employee was told that the employer had weekend work available, but refused the job because he had other obligations on the weekends. The employer indicated that the work would have been as a line cook, and would have paid $7 an hour. Expert labor market testimony presented at the hearing established that only about ten to fifteen percent of workers in the employee's labor market earn $7 or less for similar work. Consequently, the wage offered by the employer was substantially less favorable than that prevailing for similar work in the labor market area, providing the employee with good cause to refuse the work.

The commission therefore finds that in week 22 of 2000 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason permitting the immediate payment of benefits.

The commission further finds that on or about July 24, 2000 (week 31), the employee failed to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a), but that his failure to do so was with good cause, because the conditions of employment were substantially less favorable to the employee than existed for similar work in his labor market.

The commission further finds that the employee was paid benefits in weeks 3 through 15 of 2001 in the total amount of $728, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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 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 22 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 quitting not occurred. He is required to repay the sum of $728 to the Unemployment Reserve Fund.

Dated and mailed December 7, 2001
beckero . urr : 164 : 8   VL 1007.05  VL 1001.06  SW 875 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility. The administrative law judge indicated that the employee admitted he never obtained a formal leave of absence, but that he nonetheless found for the employee based upon an adverse assessment of the employer's credibility. Specifically, the administrative law judge did not find the employer's witness to be truthful regarding the offer of weekend work, since the employer knew the employee was busy with his band on the weekends. However, the commission does not believe that assumptions about the employee's interest in weekend work would have prevented the employer from offering him what work it had available, and it credits the employer's testimony that the offer was made. Moreover, whether or not one credits the employer with respect to the subsequent offer of work--which the employee had good cause to refuse based upon the wage--the fact remains that even the employee conceded his return to work would be conditioned on the availability of work. The employee's own testimony supports a finding that he voluntary quit.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc: Days Inn (La Crosse, Wisconsin)


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uploaded 2001/12/10