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

MICHAEL H GROSS, Employee

SCHLOTZSKYS DELI, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601937MW


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 approximately ten months as a "kitchen help" for the employer, a deli. The employee's last day of work was October 23, 2003 (week 43).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

On October 25, 2003, the employer's restaurant located at 10919 W. Bluemound Road, Wauwatosa, Wisconsin, closed as a result of the employer being unable to renew its lease for the location.

On October 28, 2003 (week 44), the employer offered the employee, in writing, a position as a baker at one of the employer's other locations. The employer was unable to offer the employee his prior position, as "kitchen help" at the employer's other location. The employee would make the same rate of pay as his previous position for the first week when he would be in training. After the first week, he was to receive a raise and would be paid $7.75 per hour. The employee's prospective position was located at 2705 S. 108th Street, West Allis, Wisconsin.

The employee declined the position.

The employee did not appear at the hearing and there was no evidence presented on his behalf to establish his reason for refusing the employment. Commuting distance is not a labor standard. Therefore the fact that the commute was outside the customary distance workers in the employee's labor market were willing to travel for the wage offered does not mean that the position is substantially less favorable to the employee than similar work in his labor market.

In addition, the employee was offered a different position than that which he previously held at the employer. The commission notes that the wage for a baker was higher than that for kitchen help. The titles as well as the fact that the employee required a week of training also suggest that the baker was a promotion. The employer's witness testified that the employee expressed an interest in the baker position. The fact that the employer offered the employee another job in and of itself does not establish that the employee had good cause for quitting his employment.

The employee has not demonstrated that his quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 44 of 2003 , the employee terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employee was paid benefits in weeks 44 through 52 of 2003 and week 1 of 2004, totaling $900.00, for which he was ineligible and to which he 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 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 44 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $900.00 to the Unemployment Reserve Fund.

Dated and mailed August 27, 2004
grossmi . urr : 145 : 1 SW 844

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

  

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ who held the hearing. The commission did not reverse the ALJ's decision because of a differing assessment of witness credibility and demeanor but because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.


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