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

ELLA L KREUGER, Employee

KALAHARI DEVELOPMENT LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007709BO


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 about 18 months as a front-end manager of a coffee shop, then as a head cook, and finally as the kitchen manager, for the employer, a resort hotel. For about the last year her position had been salaried. Because her department was understaffed, she also did all of the baking for the coffee shop.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

When the employee reported to work on October 10, 2003, the employer notified her that her position had been eliminated. The employer told her to check the postings of open positions and decide what job she wanted to try. The employer told her that the pay for openings it had would not be salaried and would pay less than her current rate of $11.98 per hour, based on a 48-hour week. The employee looked at the schedule and selected a position in purchasing. She was told that the employer was not hiring for that position. The employee also asked about a job in reservations and was told she did not have the qualifications. The employer told the employee to go home and decide what she wanted to do.

The employee asserted that she had been discharged. The commission agrees. The employer eliminated her position. It asked her to consider whether she was interested in any of its posted openings. The employee inquired about two of those jobs and was told one was not available and that she was not qualified for the other. The employer did not offer any evidence at the hearing that would establish that it had any jobs open that the employee was qualified to perform. The employer argued that the employee quit by not further pursuing a posted job. The employee asked about two jobs but was not given those jobs. The employer presented no evidence that it had a suitable job, what the wages and other conditions of employment were or that it ever offered the employee a job. As such, it did not offer the employee a transfer, only the opportunity to apply for a job. Under the circumstances, the employee did not quit but was discharged by the employer.

The employer did not allege that the employee was discharged for misconduct. To the contrary, the employer considered the employee to be a worker with a very strong work ethic. As such, the employee's discharge was not for misconduct connected with her work.

The commission therefore finds that in week 41 of 2003, the employee was discharged by the employer and that her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2003, if otherwise qualified.

Dated and mailed May 14, 2004
kreugel . urr : 145 : 1   MC 626

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He found the employer's version of what the employee was told to be more credible. However, the commission found the employee more reliable, in part because the employer's witness testified that she forgot, until she heard the employee's testimony, that the employee talked to the employer about a job in purchasing.


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uploaded 2004/05/24