NICHOLE R GLISCZINSKI, Employee

CROSSROADS MENTAL HEALTH SERVICES INC, Employer

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:

The employee worked about 11 months as a community support specialist for the employer, a group home for the mentally ill. Her last day of work was December 4, 2003 (week 49).

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 employee lived in Plover, Wisconsin when she started working for the employer in Wisconsin Rapids, Wisconsin, a twenty-minute commuting distance one way. The employee moved to Amherst in September 2003, which was 45 miles from her job in Wisconsin Rapids.

Shortly before moving, the employee informed the assistant director, as well as her supervisor, the office manager, that she was quitting. The employer asked the employee to submit a resignation letter to give the employer a "heads up" regarding her intention to leave. She submitted the requested letter stating that she would soon be moving out of the area and intended to find work closer to her new home. She never gave notice of any particular last day of work.

The employee was the only person doing her type of work for the employer's establishment in Wisconsin Rapids. The employer did not want the position to remain vacant after the employee left. On or about October 17, the employer told the employee that someone would be hired to replace the employee. At the employer's request, the employee agreed to train the new person. The employer did not tell the employee that once the new person was trained that the employee no longer would have a job. The employee's replacement was hired on or about November 17, 2003. The employee trained the individual.

On December 1, 2003, a meeting was held at which the employee's supervisor asked if the employee had given any thought as to when her last day of work would be. The employee responded that she had not. The supervisor said the employer could not afford to continue paying wages for the employee and the person hired as her replacement. The supervisor suggested various days as the effective date of the employee's resignation, including December 4 the end of the pay period or dates in the future. Of the options provided, the employee chose December 4, 2003 (week 49), as the effective date.

The commission finds that the employee initiated the separation of employment in this case. The employee notified the employer that she was quitting her employment. The employer accepted that notice. The employer acted on such notice by having the employee train her replacement. The courtesy of providing notice does an employer little good if the employer cannot act on such notice to prepare for the employee's last day of work. Further, while the employer pressed the employee to provide a date on which she would end her employment, the employee did so. The employee did not indicate that she had no intention to quit or that she wished to rescind her notice to the employer. The employee's actions initiated the separation of employment in this case and constituted a voluntarily termination of employment. The employee quit her employment due to the commuting distance. Such reason for quitting does not constitute an exception to the quit disqualification.

The commission therefore finds that in week 49 of 2003 the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason that constitutes an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $2,259.00 for weeks 51 and 52 of 2003, and weeks 1 through 8 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. Wis. Stat. § 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(l0e)(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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 49 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. Department records reflect that the employee requalified for benefits as of week 9 of 2004. The employee is required to repay the sum of $2,538.00 Unemployment Reserve Fund.

Dated and mailed August 4, 2004
gliscni . urr : 132 : 1    VL 1007.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ credited the employee that she believed she could continue to work until she found another position. The ALJ did not impart any particular demeanor impressions of the witnesses that led to credibility determinations. The commission finds, based on the testimony from the employer's witnesses, and the employee's resignation letter, that the employee's leaving was not contingent on the employee finding another position.

[NOTE: The decision is shown here as affected by a subsequent technical amendment to correct an error in the amount of the overpayment]

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uploaded 2004/08/23