BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DALE W. KOTHRADE, Employee

Involving the account of

NICOLET HIGH SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93603718MW


Pursuant to the timely petition for review filed in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the appeal tribunals findings of fact and conclusions of law are supported thereby. The commission therefore adopts the findings and conclusions of the appeal tribunal as its own.

DECISION

The decision of the appeal tribunal is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 15 of 1993, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $729 to the unemployment Reserve Fund.

Dated and mailed February 1, 1994
132 : CD8090   VL 1007.15

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he voluntarily terminated his employment with the employer and not for any reason which would permit immediate benefit payment. In his petition for review, the employe maintains that he was forced to quit because of his incompetence in performing his work duties. However, the employer's superintendent and principal testified at the hearing that while resignation was suggested to the employe, the superintendent did not have the authority to discharge the employe. Evidence adduced at the hearing established that the school board held ultimate authority to discharge the employe. Indeed, the fact that the employe's resignation was channeled through the school board and finally approved by the school board supports the employer's testimony in this regard. Further, the commission and courts have previously held that resignation of one's employment in lieu of what the employe considers impending discharge does not constitute a discharge but rather a voluntary termination of the employment relationship and not with good cause attributable to the employer. See David J. Teske v. LIRC and Village of Lake Delton, Sauk County Court Case 90CV-330, July 3, 1991; Michael J. Bailey v. LIRC and Weyauwega Public School, Dane County Court Case 86-CV-505, March 11, 1987; Dean B. Abbott v. Pepin Public School and LIRC, Pepin County Court Case 83-CV-16, June 20, 1984. The commission believes that the termination of the employe's employment in this case fits within the aforementioned case law and therefore agrees with the appeal tribunal that the employe voluntarily terminated his employment and not for any reason which would permit immediate benefit payment.

In the petition for review, the employe sets forth a number of facts, including a number of documents which were not introduced at the hearing since the employe did not appear at that hearing. The commission's rules provide, at Wisconsin Administrative Code Chapter LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. As was explained in the "Important Hearing Information" section of the hearing notice sent to the parties in this matter, the law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employe which are not supported by the record.

For the above reasons, and reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc:
Attorney Robert H. Duffy
Quarles & Brady



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