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


BETTE M ANGELO, Employe

ACCURATE ALIGNMENT AND FRAME SERVICE INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95401360AP


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 about 5 years as a receivable/collections clerk for the employer, an automobile repair business. Her last day of work was May 5, 1995 (week 18).

The employe had been personal friends with the employer's office manager for approximately 17 years. The employe felt the office manager was criticizing her unfairly and she became very distressed. In September of 1994, she consulted a physician. On May 5, 1995, the office manager wrote the employe up for allegedly making a mistake. The office manager did not show her the mistake that she allegedly made. The employe became upset and told the owner that she did not think it was fair and was having a problem. The owner stated that they had to get along. The employe took vacation during the week ending May 13, 1995, because she did not feel well. On May 13, 1995 (week 19), she telephoned the employer and informed the employer that she was quitting. As of the date the employe terminated her employment, she was medically unable to perform her work for the employer because it caused anxiety, stress, and insomnia.

The issue to be decided is whether the employe's quitting was for any reason which would permit the immediate payment of unemployment benefits.

Section 108.04 (7)(c), Stats., provides that an employe who terminates her work but has no reasonable alternative to quitting because she is unable to do her work is eligible for benefits if otherwise able to work and available for work.

The commission finds that the employe has established that she was unable to perform her work, exhausted all reasonable alternatives to quitting that work, and was otherwise able to work and available for work when she initiated her benefit claim. The employe provided medical evidence that she was unable to perform her work at the time she quit that work. Prior to quitting she had approached the employer and informed the employer that she was having problems with the office manager. The employer did not take any action and testified at the hearing that it would not take any action because it did not wish to get involved. The employe exhausted alternatives to quitting by approaching the employer and indicating the problems she was experiencing. As demonstrated by the employer's own testimony, it would have been futile for the employe to have approached the employer again regarding the matter. For these reasons, the commission finds that the employe did exhaust reasonable alternatives to quitting her work.

The commission therefore finds that in week 20 of 1995, the employe terminated her work with the employing unit because she was unable to do that work pursuant to sec. 108.04 (7)(c), Stats., but that she was otherwise able to work and available for work on the general labor market.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 20 of 1995, if she is otherwise qualified.

Dated and mailed: August 11, 1995
angelob.urr : 132 : 8 VL 1023.20

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission does not disturb any credibility determination made by the administrative law judge but reaches a different legal conclusion when applying the law to the facts. The commission disagrees that the employe should have again approached the employer. The employer testified that it would not have intervened in the matter. Since the employe did originally inform the employer of her difficulties, and the employer chose not to act, and testified that it would not have acted in this matter, the commission finds that she did exhaust reasonable alternatives to quitting.


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