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

DAVID A DORNBUSH, Employee

MANNING COUNSELING CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007623MD


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 42 of 2003 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed April 30, 2004
dornbda . usd : 115 : 1  VL 1005.01 VL 1059.07 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The employee quit because he had concerns about the employer's financial viability, and worried each week that he wouldn't get paid. However, the employee got paid on time each week, none of his paychecks were returned for insufficient funds, and the employer was still in business on the date of hearing. The employee testified that his October insurance premium reimbursement payment, which the employer was required to pay on or before October 31, 2003, was not paid when due, but this could not have affected his decision here since he quit on October 16, i.e., before he could have known that the October reimbursement would not be promptly paid.

Wis. Stat. § 108.04(7) provides that an employee who quits his employment is ineligible for benefits until he requalifies, unless his quitting falls within a statutory exception. The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies the employee's decision to become unemployed rather than to continue working. See, Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).

Although employees must be able to trust their employers to timely satisfy their payroll obligations, the commission has concluded that an isolated failure of an employer to do so does not provide good cause for an employee to quit. Harycki v. Wiedemeyer Service Center, Inc., UI Hearing No. 91-603649 (LIRC Aug. 26, 1991. The commission has required that an employee show a pattern of such failures in order to demonstrate good cause attributable to the employer. Harycki, supra.; Gaworski v. Myers, UI Hearing No. 98605930MW (LIRC Feb. 17, 1999); Stallman v. Stay N Play Daycare & Preschool, UI Hearing No. 02200774EC (LIRC Aug. 2, 2002); Raymond v. Rawson Plumbing, Inc., UI Hearing No. 99608668MW (LIRC March 30, 2000); Arndt v. K & D Transportation Services, Inc., UI Hearing No. 00401816AP (LIRC Oct. 5, 2000).

Here, the employee quit because he worried that, at some point in the future, the employer may be unable to pay him. However, if a single payment failure does not provide good cause, worrying that one might occur certainly would not. Moreover, the employee did not provide the employer an opportunity to address his concern before he quit. Bunnell v. National Building Maintenance, Inc., UI Hearing No. 98401333AP (LIRC Sept. 30, 1998).

The employee did not sustain his burden to show good cause attributable to the employer for his quitting.

In his petition for commission review, the employee asserts that the administrative law judge acted inappropriately in raising his tone of voice, and "brow-beating" a potential witness seated in the hearing room. However, the commission reviewed the tape of the hearing, and the administrative law judge's comments to the effect that he would not allow prompting of a witness or interruption of a witness's testimony, were reasonably justified by the potential witness's actions, and were calmly although directly stated. The employee also takes issue with the administrative law judge's denial of his request that witnesses other than the employee be allowed to testify. However, the commission concludes that the administrative law judge acted appropriately in this regard. Since the employer did not appear, the employee's testimony was undisputed, and the corroborating testimony of these other witnesses, as a result, was unnecessary. Finally, it should be noted that, in his petition, the employee offers facts not of record which the commission may not rely upon in reaching its decision here. The employee was offered a full and fair opportunity to present his case, and further hearing is not merited as a result.


ROBERT GLASER, COMMISSIONER (Dissenting)

I respectfully dissent from the majority decision. The employee's unrefuted testimony was that the employer stated virtually every week that there might not be enough funds to cover the payroll or other staffing costs. This was reinforced by the employer's mention of possible bankruptcy. No employee should have to worry each week that he may not get paid, or that his paycheck may bounce. Many workers rely on their weekly or biweekly check to meet their immediate expenses, and failure to receive prompt payment for even a single week may, for example, compromise their ability to remain in their place of residence or to pay for groceries.

/s/ Robert Glaser, Commissioner


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