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

DONNA M BRESSETTE, Employee

ST CROIX CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200320EC


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

Dated and mailed August 5, 2004
bressdo . usd : 115 : 1  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The record supports a conclusion that the employee, after being warned that she and her subordinates were to spend the last part of their shifts working rather than in the break room, instead spent time with them in the executive offices during the last 15 minutes of her shift on December 9, 2003, smoking and performing no legitimate business functions.

As a result of this incident, the employee was offered demotion to a deli line worker position. The employee refused this offer, and this refusal severed the employment relationship. Since the employee knew that her refusal to accept the demotion to the line worker position would end her employment, the resulting separation was a quit. Seager v. Bryant Products, Inc., UI Hearing No. 02000498JF (LIRC July 31, 2002); Osborn v. Wisconsin Physicians Service Insurance Corp., UI Hearing No. 92004141MD (LIRC Nov. 30, 1992); Bakalarski v. Lexus of Brookfield, UI Hearing No. 01610815MW (LIRC July 16, 2002).

Wisconsin Statutes § 108.04(7)(b), provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the separation was caused by some act or omission by the employer which justified the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979). In determining whether a refusal of a transfer/demotion was with good cause attributable to the employee lost wages, rather than a decrease in wage rate, can be considered. However, even if the decrease in wages is substantial, as it is here, (see, e.g., Kromenacker v. Adventure Academy, Inc., UI Hearing No. 03401580GB (LIRC March 4, 2004) (good cause found for pay reduction of approximately 20%)), good cause attributable to the employer will generally not be found unless the decrease was arbitrary or unreasonable. See, Schensky d/b/a Schensky Builders v. DILHR, No. 145-357 (Wis. Cir. Ct. Dane County May 16, 1975).

The circumstances here support a conclusion that the employee failed to prove that the employer's actions were arbitrary or unreasonable. The employer's offer to the employee of transfer to a lower level position at a lower rate of pay occurred because the employer reasonably concluded that the employee's performance as a supervisor was deficient, i.e., that despite prior warning as to the employer's expectations of the employee and her subordinates during the last part of their shifts, the employee condoned and participated in her subordinates' use of the employer's executive offices for smoking and other non-work-related activities during this period of time. See, e.g., Anthony v. The Good Guy's Pub, UI Hearing No. 90-402092 (LIRC Feb. 14, 1991) (employee's failure to meet employer expectations as to scheduling of hours, cleaning of grill, and tapping of beer by subordinate bartenders reasonably justified demotion from manager to bartender); Seager, supra (transfer/demotion reasonably justified by employee's practice of leaving work before the end of shift without notice); Schensky, supra.

The employee has not shown that any other exception to the quit disqualification would apply here.

cc: Little Turtle Hertel Express



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