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


CHRISTOPHER M TODD, Employe

FRONTIER TELEMANAGEMENT INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96605091MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for a year and a half as a salesman for the employer, a telecommunications business. His last day of work was May 31, 1996 (week 22).

In mid-April, the employe's supervisor notified the employe's department during a routine conference call that they would receive one week of training in Detroit. The employe was on vacation and did not receive this notice, although his manager assumed he did. Two other individuals promptly requested and were granted accommodation to travel to the training on Sunday instead of flying in on Saturday. Another was permitted to reschedule the training entirely.

The employe worked a first shift, week-day schedule. In mid-May he accepted a part-time job working evenings and weekends. On May 16, 1996, the employe first learned that the training would be in the first week of June. On May 22, he received the itinerary which indicated that he would be required to travel to Detroit on Saturday, June 1, and that the opening session would begin at 2 p.m. on Sunday. He requested accommodation to travel on Sunday instead because he was on call for his part-time job. He also wished to attend a wedding on Saturday. Before speaking to his manager about an accommodation, he contacted the travel agent who told him that the ticket had not yet been purchased. He relayed this information to the manager at the time he made his request. His manager said she would get back to him. After several discussions and several days had passed, the manager finally told him he would have to go on Saturday. The employe offered to pay the difference in the flight costs and reminded the manager that three other individuals had had their personal schedules accommodated. On the employe's last day of work, he told his manager that he would not go on Saturday but he was willing to go either Sunday or Monday. He was told that he could attend the training as scheduled or resign. He tendered a formal letter of resignation after he was told that he would not receive his final paycheck until he had done so and had returned the employer's equipment.

The first issue to be decided is whether the employe quit or was discharged.

The employe argued that he had no intention to quit and that he was discharged for failing to attend the training on Saturday. The commission disagrees. The separation constituted a quitting. The employe had the option to attend the training as scheduled and remain employed. By refusing to do so, the employe ended the employment relationship. The issue is whether he had good cause attributable to the employer for do so.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The commission concludes that the employe has shown good cause attributable to the employer for quitting. He explored alternatives short of quitting. He notified the manager of his job conflict as soon as he became aware of it. He did not refuse to go to the training and said he would go on Sunday or Monday. He offered to pay the difference in the fare so that he could travel later. He contacted the travel agent and made these efforts to adjust the itinerary before the ticket was purchased. He attempted to accommodate the employer's interests as well as his own, but since the employer had no genuine objection to the request other than the fact that it considered it tardy, it accepted none of these suggestions. The manager was arbitrary in her refusal to accommodate the employe. It had granted the accommodation to others similarly situated and did not articulate any meaningful employer interest that would have been harmed by accommodating the employe. Since the employe was not scheduled to work on weekends, it was not unreasonable for him to accept other employment. The employer demonstrated fault in denying the employe's request when it had granted the same accommodation to others and could offer no substantive argument for distinguishing the employe's case.

The commission therefore finds that in week 22 of 1996, the employe terminated work with the employer with good cause attributable to the employer, within the meaning of section 108.04(7)(b) of the statutes.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 22 of 1996 if he is otherwise qualified.

Dated and mailed January 31, 1997
toddchr.urr : 178 : 8  VL 1005

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing his decision. While the commission finds essentially the same facts as those found by the ALJ, it reaches a different legal conclusion.

cc: ATTORNEY KEVIN G KEANE
HOST & KEANE SC


[ Search UC Decisions ] - [ UC Digest ] - [ UC Legal Resources ] - [ LIRC Home Page ]