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

ROBERT  T  PINKOS, Employee

BURGESS CAR AND TRUCK SERVICE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604628MW


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 almost eight months as a mechanic for the employer, a truck service center. His last day of work was May 1, 2003 (week 18), when he voluntarily terminated his employment.

The issue is whether the separation was a quit or discharge, and whether it occurred under circumstances which would permit the payment of benefits.

Chris Nіemіec was the service writer at the location at which the employee worked and functioned as the employee's supervisor at that location.

On April 18, Chris called the employee a "brain-dead dumb ass" when the employee failed to hear him call for assistance. Later that day, the employee went to Chris's office and told Chris he was sick and needed to go home and Chris called him a "fucking crybaby."

On April 30, the employee failed to tie up an exhaust which was dragging on the ground prior to pulling the truck into the shop, and Chris called him a "brain-dead dumb ass" again as a result. In response, the employee, as he admitted in his hearing testimony, called Chris a "disrespectful asshole," and asked Chris to stop calling him names. Chris then sent the employee home for the rest of the day.

On May 1, 2003, due to Chris's treatment of him on April 18 and 30, the employee told Chris that he was putting in his two weeks' notice. Chris told the employee to grab his stuff and leave then.

The employee had not brought his concerns about Chris's treatment of him to manager David Burgess because he and Burgess had argued in December of 2002 when the employee had failed to punch out when he left work to go to his son's school program. On that occasion in December, Burgess had yelled at the employee and told him that he was stealing from him.

The first question is whether the separation was a quit or a discharge. Although the employee was sent home by his supervisor on April 30, he did not understand that he had been terminated and in fact appeared at work the next day and submitted his resignation. The separation was a quit.

Wis. Stat. § 108.04(7) provides that an employee who quits his employment is ineligible for benefits until he requalifies, unless his quitting falls within a statutory exception. The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). Good cause attributable to the employer has been found where an employee has notified the employer of such concerns, and the employer has failed to take reasonable and necessary steps to address them, See, e.g., Opportunities Industrialization Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Hearing No. 98402102AP (LIRC July 30, 1999).

Here, the employee had a rocky relationship with his supervisor Chris. Chris directed insulting profanity at the employee twice on April 18 and once on April 30, and the employee responded in kind on April 30. The employee did nothing, however, to bring this to manager Burgess's attention so that the employer would have an opportunity to address and resolve it. The employee explains that he did not do so because, in December of 2002, Burgess had criticized him for failing to punch out when he left the work site in the middle of his shift, and, according to the employee, had "yelled" at him in the process. However, this would not give the employee sufficient justification for failing to alert the employer of a situation which he felt was so serious that he had no choice but to quit. The employee has the burden to show good cause attributable to the employer, and, due to his failure to alert Burgess of his concerns, failed to sustain this burden.

The final question is when the quit should be deemed to have taken effect, on the employee's last day (May 1) or on the date he had offered to the employer as his resignation date in order to give two weeks' notice (May 15). The "accelerated quit principle" would be applicable here. Pursuant to this principle, if an employee gives the employer notice of his intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employee to continue working up until the time that notice would have been effective, the employee will be eligible for benefits until the time that the resignation would have become effective unless there was some intervening misconduct on his part. Boehm v. Downtown TV, UI Hearing No. 88-402052WU (LIRC June 29, 1989); Hoyt v. Wisconsin Bell, Inc., UI Hearing No. 95602614MW (LIRC Feb. 16, 1996); Brauch v. Walgreen Co. Illinois, UI Hearing No. 99605347WK (LIRC Nov. 24, 1999). As a result, the employee would be eligible for benefits prior to week 20, and ineligible for benefits beginning in week 20 and thereafter.

The commission concludes that the employer, by its actions in failing to offer continued work until the effective date of the quitting, incurred liability for benefits in weeks 18 and 19 of 2003.

The commission concludes further that, in week 20 of 2003, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $7,201, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits prior to week 20 of 2003, if otherwise qualified; and is ineligible for benefits beginning in week 20 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. The employee is required to repay the sum of $7,201 to the Unemployment Reserve Fund.

Dated and mailed November 26, 2003
pinkoro . urr : 115 : 1  VL 1005.01  MC 627 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because this reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.


Appealed to Circuit Court. Affirmed May 20, 2004.  [Circuit Court decision summary

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uploaded 2003/12/03