SUSAN M KEZO, Employee

DOOR COUNTY CHILD CARE SERVICES INC, Employer

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:

The employee worked as a cook for about one and one-half years for the employer, a child day care center. Her last day of work was December 14, 2001 (week 50). The employee was aware that whatever was said in the building was to stay in the building. She was aware that the employer had a confidentiality policy in place.

On December 7, the employee mentioned to a bank employee, also a parent of a child at the center, that two co-workers were quitting. She discussed the name of one of those workers. The employer's executive director learned of the employee's disclosure, and placed the employee on probation for thirty days. The probationary terms required the employee to stay in the kitchen and only speak to staff when necessary about meal information and to follow company confidentiality policies. The executive director also denied the employee's previously submitted request for vacation time, indicating that the reason was because she was on probation. The employee did not return to work following her last day of work because she considered the employer's actions unreasonable.

The issue to be decided 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 employer 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 employer's part 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 knew she was not to disclose the resignation of a worker to someone outside the facility. The employee did not establish that the short-term discipline imposed by the employer was so punitive as to give the employee good cause for quitting. The condition that the employee restrict conversations with workers to matters directly related to work was not unreasonable given the reason the discipline had been imposed. The employee at the most established that she had one scheduled vacation day that was cancelled by the employer's actions. The employee did not testify that she made any extensive plans or incurred any particular expense in reliance on vacation previously granted. Finally, the employee never advised the employer that she considered the discipline imposed to be so harsh that she was contemplating terminating her employment. The employee's explanation for not raising her feelings with the executive director was that the executive director was not around much and it was not polite to call people at home. The employee could have contacted the executive director and should have placed preserving her employment above concerns about etiquette.

The commission therefore finds that in week 50 of 2001, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $8,034.00 for weeks 3 through 28 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

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).

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 50 of 2001, 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. The employee is required to repay the sum of $8,034.00 to the Unemployment Reserve Fund.

Dated and mailed July 26, 2002
kezosus . urr : 132 : 1 :  VL 1005.01  VL 1014

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ indicated that her decision was not based on any credibility or demeanor impressions she had of the witnesses.

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uploaded 2002/07/26