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

THEODORE T HALIBURTON, Employee

BW 3, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03611531MW


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. Pursuant to the commission's order, further hearing was held on September 17, 2004. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and the ALJ at the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about a month as a doorman for the employer. His last day of work was June 21, 2003 (week 25). The employee quit on June 28, 2003 (week 26).

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

The employee quit on June 28, 2003, when he failed to show up for two scheduled shifts. He quit without notice to his employer.

Wisconsin Statute § 108.04(7)(a) provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Pursuant to Wis. Stat. § 108.04(7)(e), the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employee accepted work which could have been refused under Wis. Stat. § 108.04(9) and terminated the employment within the first ten weeks after starting the work. Wis. Stat. § 108.04(9) provides that a claimant shall not be denied benefits for refusing to accept new work if the wages, hours (including arrangement and number), or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

The employee appeared at the hearing and explained that he quit because he believed there was not enough work for him. The employee was hired to work part time and worked 14 to 18 hours per week, except for two weeks when no work was performed. In the employee's labor market only 22 percent of similar work is part time. The number of hours offered to the employee were substantially less favorable to the employee than existed for similar work in his labor market.

The commission therefore finds that in week 22 of 2003 the employee accepted work that he could have refused because the hours of the work were substantially less favorable to the employee than those prevailing for similar work in his labor market, and that the employee voluntarily terminated that work in week 26 of 2003, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 26 of 2003, if he is otherwise qualified. There is no overpayment as a result of this decision. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account

Dated and mailed October 14, 2004
halibth . urr : 132 : 1   VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission has reversed the ALJ's decision based on testimony taken at the remand hearing and not based on the credibility of the witnesses.


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