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

ROBERT B UREN, Appellant

JACOBSON GROUP SE INC, Respondent

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602655RC


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 appellant initiated his benefit claim after a permanent layoff from a manufacturing company in week 3 of 2003, the week ending, January 18. In anticipation of such permanent layoff, he obtained a license to sell real estate. The appellant commenced work for the respondent in March of 2003. All of his work was as a real estate agent compensated solely by way of commission. He terminated this work during week 29 of 2003, the week ending July 17, to perform real estate sales work for a different real estate company. His compensation in that relationship was solely by way of commission for property sold. He discontinued that relationship in November of 2003 based on the fact that he had not sold any commission-generating property.

The initial issue to be decided is whether the appellant is disqualified from benefits based on the application of Wis. Stat. § 108.04(7)(a). That statutory section provides:

If an employee terminates work with an employing unit, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the termination occurs and the employee earns wages after the week in which the termination occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

The appellant argues that his separation from the respondent should not affect his benefit eligibility because, pursuant to Wis. Stat. § 108.02(15)(k)7., his services for the respondent were not in an employment. The commission disagrees with the appellant's argument. Wis. Stat. § 108.04(7)(a) applies when an "employee" terminates work for an "employing unit." There is no requirement that the separation be from an employment. That is, the appellant must be an "employee," and must have performed services for an "employing unit," but need not have been an "employee" of that "employing unit."

Wisconsin Statute § 108.02(12)(a), defines an "employee" as:

any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit.

(emphasis added.)

The appellant is an "employee" under Wis. Stat. § 108.04(7)(a) and Wis. Stat. § 108.02(12)(a) not by virtue of his services performed for the named employing unit, but based on his past services for the manufacturing company, where he earned base period wages that qualified him for unemployment insurance benefits.

The appellant asserts that he terminated his work for the respondent in order to accept more favorable work. However, the exception contained in Wis. Stat. § 108.04(7)(L) requires that the appellant quit to accept employment or work covered by the UI law of a state or the federal government. The appellant has not established that he accepted employment/covered work, and that he has requalified for benefits by earning four times his weekly benefit rate in employment/covered work.

The appellant further argues that he quit with good cause attributable to the employing unit pursuant to Wis. Stat. § 108.04(7)(b). Good cause attributable to the employing unit means that the resignation is caused by some act or omission by the employing unit which justifies the decision to quit. It involves some fault on the employing unit'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).

The appellant did not establish fault on the part of the respondent that caused the appellant to terminate his work for the respondent. The appellant did not establish, for example, that the respondent breached any compensation agreement it had with the appellant. The appellant terminated his work because he believed he had the potential for greater monetary success with another employing unit. The appellant may have had a valid reason for terminating his work with the named employing unit, but he did not establish that he did so for any reason recognized in the statutes that permits immediate benefit eligibility.

Finally, the appellant argues that if he cannot use the wages earned with an employing unit to qualify for benefits, he should not be found ineligible for benefits based on ceasing to perform that work. However, Wis. Stat. § 108.04(7) refers to terminating "work," not terminating "employment." Whatever merit there might be in the appellant's argument, the commission must apply the laws as they are written and does not have the authority to reach a result at odds with the statutes, even if such result would appear equitable.

The commission therefore finds that in week 29 of 2003, the appellant voluntarily terminated his work within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the appellant was paid benefits in the amount of $9,200.00 for which the appellant was not eligible and to which the appellant 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 appellant's. 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 appellant 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 modified to conform to the above findings and, as modified, is affirmed. Accordingly, the appellant is ineligible for benefits beginning in week 29 of 2003, and until four weeks have elapsed since the end of the week of quitting and until the appellant 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. The appellant is required to repay the sum of $9,200.00 to the Unemployment Reserve Fund.

Dated and mailed November 19, 2004
urenrob2 . urr : 132 : 1 : ET 483.01  EE 415  VL 1037

 /s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc: Attorney Kathleen M. Healy


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