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

JOHN G  TICE, Employee

CITY OF WEST ALLIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03608220MW


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 employee is ineligible for benefits beginning in week 30 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed April 15, 2004
ticejoh . usd : 150 : 1  VL 1007.15

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitions the appeal tribunal decision arguing that he voluntarily terminated his employment in lieu of being discharged and should be eligible for unemployment insurance benefits on the grounds that the employer was no longer objecting to his benefit claim. While the employer may no longer object to petitioner's claim for benefits, its objection, or lack thereof, is not determinative to the employee's actual eligibility. Instead, the employee's eligibility for benefits is governed by Chapter 108 of the Wisconsin Statutes.

A review of the record reflects that employee had the option to continue his employment at least through the hearing stage with the Fire and Police Commission.

Generally the commission and the courts have concluded that when an opportunity for hearing is given, resigning one's employment in lieu of what the employee considers impending discharge does not constitute a discharge but a voluntary termination of one's employment without good cause attributable to the employer. Hopland v. School District of Oostburg, UI Dec. Hearing No. 98400892SH (LIRC May 27, 1999).

Further, the Wisconsin Supreme Court in Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 534, 535, (1979), held that in order for a worker to successfully bypass the hearing stage, it must be shown that the hearing would have been pro forma and that the employer was acting in bad faith. There is also a presumption of good faith by the official decision-makers. Id.

While the petitioner did not believe that he would ultimately succeed in maintaining his employment following a hearing before the Fire and Police Commission, the record in this matter does not demonstrate that his hearing process was merely pro forma and did not establish that the Fire and Police Commission was acting in bad faith. Consequently, the commission affirms the appeal tribunal decision.

 


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