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

DENNIS G CYCHOSZ, Employee

CONWAY CENTRAL EXPRESS , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02003638WR


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 approximately four and one-half months as a part-time cashier for a pro shop for a golf course in the state of Florida. His last day of work was April 19, 2002 (week 16), when he quit. There is nothing in the record to suggest that he failed to perform all the work he was scheduled for in that week.

The issue is whether the employee quit for a reason which entitles him to immediate benefit payment.

The employee quit his Florida employment because he accepted a full-time job in Wisconsin at Construcks, a trucking company different from the employer named in the caption of this decision, that paid more than what he was currently earning. He was working part-time earning about $8 per hour in his Florida employment. He and his wife moved back to Wisconsin on April 21, 2002. He began his new job on April 29, 2002. For week 17 of 2002 (April 21-27), he received no income. For week 18 of 2002, he received $252.50 in income. For week 19 of 2002, he received $730 in income. He did not file weekly claims thereafter.

The employee contended that he quit for a reason which entitled him to immediate benefit payment.

When a worker quits a job, he or she is presumed ineligible for benefits unless he or she qualifies for an exception to the quit disqualification. One exception to this disqualification is set forth in Wis. Stat. § 108.04(7)(p). This allows an employee to be immediately eligible for benefits if while claiming benefits for partial unemployment, he terminated work to accept employment or other covered work, if that work offered an average weekly wage greater than the average weekly wage earned in the terminated work.

The employee quit part-time work paying about $8 per hour to accept full-time work paying about $10 per hour with Construcks. The commission takes administrative notice of its department's computer records that indicate Construcks is a covered employer.

The employee was not able to begin his employment with Construcks immediately upon quitting because he had to move to Wisconsin, take drug tests and wait for a HAZMAT license. The drug tests and the HAZMAT license were required for the employee's new job.

The commission therefore finds that in week 15 of 2001 the employee terminated work with the employer, while claiming benefits for partial unemployment, to accept employment or other covered work which offered an average weekly wage greater than the average weekly wage earned in the terminated work, within the meaning of Wis. Stat. § 108.04(7)(p).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 16 of 2002, if he is otherwise qualified.

Dated and mailed November 27, 2002
cychode . urr : 145 :   VL 1037 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. Rather the commission reaches a different legal conclusion when applying the law to the facts found by the ALJ.

cc: 
Dennis G. Cychosz - Stevens Point, WI
Patricia M. Cychosz
Margate Executive Golf Course


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uploaded 2002/12/13