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

HERBERT D LINDSAY, Employe

SCHOOL DISTRICT OF WASHBURN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97200655EC

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 10 of 1997, if otherwise qualified.

Dated and mailed: January 16, 1998
lindshe.usd : 105 : 1   VL 1023.10

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for review, the employer correctly states the three primary issues in this case: whether the employe was unable to perform his work due to health reasons, whether the employe had no reasonable alternative to quitting his employment, and whether the employe was generally available for work under Wis. Stat. § 108.04 (7)(c). The commission agrees with the administrative law judge's affirmative answers to these questions.

The medical evidence in the record indicates that, because of the harassment the employe and his family was subjected to, the employe no longer was able to perform his work. Support for the employe's position also includes the employe's virtually immediate improvement upon his quit of the employment.

In cases like this, a transfer or a leave of absence can constitute a reasonable alternative to an outright quit. As the administrative law judge reasoned, though, in this case a leave of absence would not have served any purpose since the employe would not have returned to the school in the following year in any event. In addition, there is no indication in the record that the circumstances leading to the employe's quit would have gone away simply by the employe's having taken a leave of absence. For these reasons, the commission agrees with the administrative law judge that a leave of absence in this case was not a reasonable alternative to the employe's quit, under Wis. Stat. § 108.04 (7)(c).

The commission also agrees with the administrative law judge's conclusion that the employe was generally available for work despite his quit of employment with the employer. The record indicates that the employe's condition improved virtually immediately. In addition, the employe began looking for work within a week of his quit. Further, the employe in fact obtained work approximately five weeks after his quit. These factors all support the administrative law judge's conclusion that the employe met the (7)(c) general availability requirement. For all of these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: ATTORNEY JAMES WARD
WELD RILEY PRENN & RICCI

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