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

MICHAEL PENKWITZ, Employee

US SHIP MANAGEMENT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601121MW


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 the employer as a maintenance worker aboard a commercial ship in the Persian Gulf. He started on August 2, 2003 and his last day of work was on December 8, 2003 (week 50).

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.

The employer hired the employee to work up to 180 days. Pursuant to the employee's contract of hire, he could request to be repatriated with the payment of transportation by the employer upon completion of 120 days of employment. The contract provided that exercising such option terminates the employment relationship. After the employee had worked 120 days, the ship's captain informed him that he had worked 120 days and asked the employee if he wanted to return home. Given the extreme heat, the employee stated that he did wish to return home.

The employee made the ultimate decision to terminate his employment. The fact that the captain notified him that his 120 days had been completed and he could exercise the option of returning home at the employer's expense did not constitute a discharge. There is nothing in the record to indicate that had the employee replied that he wanted to continue, the employer would not have allowed him to do so. The employee may have made a valid personal decision to terminate his employment, but he did not establish that he quit his employment for any reason that permits immediate benefit payment.

The commission therefore finds that in week 50 of 2003, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $10,018.00 for weeks 50 through 52 of 2003, and weeks 1 through 28 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 50 of 2003, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $10,018.00 to the Unemployment Reserve Fund.

Dated and mailed July 28, 2004
penkwmi . urr : 132 : 1 VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.



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