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

CLEARRISSIA M CONNER, Employee

GRISBYS CHILD DEVELOPMENT CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610018MW


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 eight months as a caregiver for the employer, a daycare center. The employee's last day of work was June 10, 2002 (week 24) when she was suspended for two weeks.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

In February of 2002, the employer told its staff that they would have to take a CDA course. This class was not required by the state. The state required the employee to have certain other qualifications, including childcare I, II and infant and toddler classes as well as a high school diploma. At the time of hire, the employee informed the employer of her qualifications.

The employee explained to the employer that she was not going to take the course because she did not have the money to pay for it. The course that the employer wanted the employee to take cost $825.00 per person. The employer paid for $500.00 of it and the workers had to pay the $325.00 balance. The employer told her if she did not take the course she would be automatically discharged. The employee chose to take the course rather than be discharged. The employer then paid for the course and expected the employee to repay the money. The employee was planning on coming up with the money at a later point. She had been promised a raise and thought she would be able to pay for the course when she got the raise. The employer offered the employee the option of a payment plan but she was unable to afford the $100.00 per check deduction proposed by the employer. The employee has bills, two children to take care of and is a single parent. The employee made about $8.00 per hour. The employee was willing to allow the employer to deduct the cost of the class from her check, but could not afford $100.00 per check. The employer told her that she would be suspended and that if she could not come up with the money within the two-week suspension period she would be discharged.

The employee gets W-2 and knew that in a crisis the people at W-2 might be able to help her. She went to W-2 and was told they would give her a loan but the employer would not wait until the loan was processed.

In this case the employee did not intend to quit, but rather, wanted to continue working for the employer. The employee was not aware, at the time she was hired, that she would be required to take an expensive class. Rather, the employee was told shortly before the class was scheduled, that she would need to take this class. The employer further informed her that she was required to pay for a significant part of the course herself. The employee informed the employer that she wanted to continue working but could not afford the class. The employer then told her to take the class but to repay the cost of the class. The employee took the class but when she was told she had to pay $100.00 per paycheck, she told the employer she could not afford that either. The employer did not offer to reduce the repayment amounts. The employer suspended the employee for two weeks and told her if she could not repay the $325.00, she would be discharged. The employee attempted to get a loan from W-2 but the employer did not want to wait until the loan came through. This is a significant amount of money and it is understandable that a single parent with two children to support would not be able to immediately come up with this amount of money. The employee took steps to try to repay the loan but was unable to do so in the time required by the employer. The employee's actions demonstrated that she wanted to remain employed with the employer, rather than that she intended to quit. As such, the commission concludes that the employee was discharged by the employer.

The next issue what must be decided is whether the employee's discharge was for misconduct connected with her employment. The employee did not choose to take the course. Rather the employer unilaterally decided, during the employment relationship, that the employee should take the class. While the employer was willing to cover most of the cost of the class, the amount required of the employee was a financial hardship to her and the employee did not have the financial wherewithal to repay the employer in the amount of time she was given. The commission cannot find that the employee's failure to pay for the course by June 28, 2002, amounted to misconduct.

The commission therefore finds that in week 26 of 2002, the employer discharged the employee and that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 26 of 2002, if otherwise qualified.

Dated and mailed May 20, 2003
connecl . urr : 145 : 1 VL 1007.01 VL 1059.07

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He did not specifically remember the employee, but he testified that he did not find her explanation for failing to pay the employer in the required amount of time to be satisfactory. The ALJ thought that the employee may have been dragging her heels to see if perhaps the employer would cover the entire cost of the class. The commission found the employee's explanation, that she was simply unable to come up with a significant amount of money in such a short period of time, to be a reasonable explanation. The commission did not consider the employee's failure to pay the money to be, in the circumstances presented in this case, indicative of an intent to quit her job.


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