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

LENN V HOWE, Employee

JENNIE O TURKEY STORE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201843EC


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 four years for a turkey processing business. His last day of work was on October 25, 2001 (week 43). The employer notified the employee that his employment was ended on October 30, 2001 (week 44).

In September, 2001, the employee was reprimanded for being intoxicated at work and leaving work without permission. He was required to commit to notifying his supervisor of his attendance and he was referred to an alcohol program.

On October 19, 2001, the employee received a memo regarding his performance. It set out five points regarding his poor performance and his communication with customers and team members. The employee was told to make a commitment to addressing the points in the memo. On October 23, when asked for the commitment, the employee explained he forgot to bring the memo to work. He called in the following day stating he would be absent. He then appeared and met with the supervisor. He appeared to be drunk. He did not work that day but requested a transfer. He was told that any transfer was contingent upon his making a commitment. No other supervisor would take him without it. On October 25, the employee again met with the supervisor about a transfer. Again he appeared intoxicated. He was suspended from his regular duties pending resolution of the commitment issue and finding a transfer to another job. The employee testified that on October 24 or 25 he was told explicitly that he had to sign the commitment or he was not to come back to work. He signed the memo on October 25, but only commented that he did not agree with its contents. He offered no commitment to the performance issues in the memo. On October 30, he was discharged for failure to make a commitment and coming to the employer's premises intoxicated.

The first issue to be decided is whether the employee quit or was discharged. The next issue is whether the circumstances of the employee's separation disqualifies him from benefits.

The employer had two different points of contention with the employee over the last few weeks of his employment. First that he refused to cooperate with it regarding its disciplinary memo process. Secondly that he was intoxicated during follow up contacts with human resources and his supervisor after his last day of work.

The commission and the courts have previously held that employees who refuse to sign disciplinary notices or to commit to future improvement during an employer's disciplinary process have quit their employment without good cause attributable to the employer when their continued employment is clearly made contingent on such commitment. Beshears v. Intl Cabling Systems, U I Dec. No. 00004185MD (LIRC Dec. 18, 2000); Miller v. LIRC, No. 92-CV-2953 (Wis. Cir. Ct. Waukesha County Jan. 24, 1994) Court of Appeals, District II, Case No. 94-0940, January 25, 1995 (unpublished); Burton v. Signicast Corp, UI Dec. No. 00603251MW (LIRC Oct. 23, 2000), In the present case, as in Burton, the document which the employee was asked to sign accused the employee of conduct with which he disagreed, and also required him to specifically indicate how he would improve his conduct in the future

Here the employee was required to make a commitment to improved performance for his job to continue or for his requested transfer to occur. His failure to cooperate caused the end of his employment. Although he ultimately signed the disciplinary letter, he never made the commitment required by the employer. His drinking during these contacts with the employer simply aggravated the situation but were not the primary reason the employment relationship ended.

The commission therefore finds that in week 44 of 2001, the employee voluntarily quit his employment within the meaning of Wis. Stat. § 108.04(7)(a), and that his quitting was not within any exception permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in the amount of $ 8001 during weeks 44 through 52 of 2001, and weeks 1 through 16 of 2002, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 44 of 2001, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay $ 8001 to the Unemployment Reserve Fund.

Dated and mailed May 9, 2002
lowelen . urr : 178 : 1   VL 1014

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission discussed credibility with the ALJ prior to reversing. The ALJ stated that there was no significant credibility issue which influenced her decisionmaking. The commission also does not make a different credibility assessment of witness testimony but reverses as a matter of law for the reasons stated above.


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uploaded 2002/05/13