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

DAVID T WEBER, Employee

DIAMOND TRIUMPH AUTO GLASS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03402014AP


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 six years and four months as a district sales manager for the employer, an automobile glass installation company. His last day of work was April 18, 2003 (week 16).

On April 18, 2003, the employee quit his employment with the employer in order to purchase his own business. The employer's regional manger told him he would be receiving vacation pay for the two weeks after his last day of work. On or about May 5 the employee called the employer regarding his vacation pay. He was then told that the employer was not going to pay him because it was not required to pay out unused vacation. On May 6, 2003 (week 19), the employee contacted the department's telephone initial claims system to initiate a benefit claim.

The issue to be decided is whether the employee's failure to give timely notice to the department of his intent to initiate a benefit claim in weeks 17 and 18 of 2003 was because of any exceptional circumstance which would justify a wavier of the notice requirement.

The Wisconsin Administrative Code provides that the time limit for providing notice of an intent to initiate a benefit claim can be waived under exceptional circumstances. One such circumstance is "action by an employer in any manner, directly or indirectly, instructing, warning, or persuading the claimant not to file a benefit claim." Wis. Admin. Code § DWD 129.01(4)(b). The commission finds that the employer indirectly persuaded the employee not to file a timely claim when it told him he would receive vacation pay in weeks 17 and 18 of 2003.

The commission therefore finds that in weeks 17 and 18 of 2003, the employee failed to give timely notice of his intent to initiate a benefit claim within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, but that the reason for that failure constituted an exceptional circumstance so as to permit a waiver of the timely notice requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in weeks 17 and 18 of 2003, if he is otherwise qualified. (1)

Dated and mailed January 8, 2004
weberda . urr : 132 : 1  CP 360

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the ALJ but has reversed the ALJ's decision based on the employee's undisputed testimony.

cc: Diamond Triumph Auto Glass, Inc. (Kingston, PA)


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Footnotes:

(1)( Back ) In a separate decision issued this same date the commission affirmed an Appeal Tribunal Decision that found the employee was ineligible for benefits beginning in week 16 of 2003 based on his separation from the employer. The employee is therefore not "otherwise eligible" for benefits in weeks 17 and 18 of 2003. 


uploaded 2004/01/12