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

STEPHEN C SCHWEI, Employee

FRONTIER SOFTWARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02001812WK


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete the first sentence of the seventh paragraph under the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee's base period wages shall be limited to a maximum of ten times the weekly benefit rate based solely on employment by this employer.

Dated and mailed August 6, 2002
schwest . umd : 132 : 1  VL 1054.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found the employee was employed by a corporation of which one-half or more of the ownership interest was owned or controlled by the employee, and that his termination by the family corporation employer was not due to involuntary cessation of business. The employee maintains that Wis. Stat. § 108.04(1)(gm) 4.a. applies in this case. However, there is no evidence in the record that the corporation assigned its assets for the benefit of creditors. It is not enough that the corporation's debt represents more than 75 percent of its assets. The law requires that at least 75 percent or more of corporate assets be disposed of by assignment, surrender, or sale. The employee has not demonstrated that 75 percent of corporate assets have been disposed of in the manner required by law.

The commission is not unsympathetic to the employee's argument. Nevertheless, the language of the statute, as it has been created by the Legislature, requires the result reached. The commission is required to apply the statute as it is written and has no authority to deviate from its plain language. While such language results in a decision adverse to the employee, this reflects the Legislature's intent in cases such as these. Accordingly, the commission may not overturn the appeal tribunal decision.



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uploaded 2002/08/16