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

LESLIE J KOESER, Employee

MCDONALDS 91, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403443GB


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 the employer, a fast food restaurant, for about three years as a crew trainer. Her last day of work was August 30, 2004 (week 36).

On August 30, 2004, the employer was short-handed and the restaurant was busy. The employee was working along side a cook in the kitchen and asked if somebody could please give her some help. The employer's store manager, Dan Skogg, came into the kitchen and angrily told the employee that he was "sick and fuckin' tired" of people complaining about their jobs. The employee responded that there was no reason for him to talk to her like that, to which Mr. Skogg replied that if the employee "didn't fuckin' like it" she could put in her two weeks notice. Mr. Skogg also made a comment about one of the employee's co-workers, whom he contended had four kids and was on welfare, and asked the employee why she didn't do that. Mr. Skogg then stormed away from the area.

The employee continued to work for another hour and a half, during which time she hoped Mr. Skogg would apologize to her. He did not do so. At about 9:00 a.m. the employee punched out and left. She did not return to work for the employer.

The issue to decide is whether the employee's quitting was for any reason which would justify the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979).

The employee quit in response to verbal abuse by the general manager. The general manager's conduct, which was unprovoked, was unprofessional and offensive to a degree that no employee should have to tolerate. Although the commission has generally held that an employee who is dissatisfied with her treatment at work has an obligation to give the employer an opportunity to address and resolve her complaints prior to quitting, in this instance there was no other manager or assistant manager present in the store, and the eight other management employees assigned to that location were subordinate to Mr. Skogg. Although the employer does have a district manager whom the employee could have attempted to contact, it has no written harassment policy directing her to do so, and it is not clear from the evidence that the employee had any reason to believe this individual would be able to assist her. Under all the facts and circumstances, the commission concludes that the conduct of the general manager, the top-ranking manager at the place of employment, was so egregious as to provide the employee with a real and substantial reason for terminating her employment.

The commission therefore finds that in week 36 of 2004, the employee voluntarily terminated her employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 36 of 2004, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 8, 2004
koesele . urr : 164 : 1
VL 1080.20

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is as a matter of law.


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