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

JOSE E DE CELIS, Employee

FURNITURE & MATTRESS XPRESS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202698EC


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 furniture store, for approximately eight months as a driver. His last day of work was October 13, 2004 (week 42).

The employee's responsibilities including making deliveries and unloading trucks, as well as store upkeep. In the last several weeks of his employment, the employer did not have much driving work available for the employee. Therefore, the employee was assigned other tasks, including cleaning and painting the office. The employee also performed yard work for the employer. During this period the employer generally scheduled the employee for forty hours a week and found tasks for him to do. However, some days were slow, and in his last full week of employment, the employee worked only twenty-seven to thirty hours. On October 13, 2004, the employee notified the employer that he had found other employment and was quitting.

The issue to decide is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment 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 employing unit" 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 part of the employer 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 employee contended that he quit because the employer cut his hours. He also contended that he has lupus, and that the employer required him to work in the hot sun, which exacerbated his medical condition. The employee argues that his quitting under these circumstances was with good cause attributable to the employer. The commission disagrees. The record does not indicate that the employee's hours were permanently reduced and, although the employer acknowledged that some days were a little slow, it was generally able to find things for the employee to do. The employee could have retained his employment and claimed partial benefits during the week or weeks in which he worked a reduced schedule, particularly where the record contains no indication that the reduction in his hours was anything other than temporary.

Regarding the employee's assertion that the employer assigned him work which exacerbated his medical condition, the evidence suggests that it was the employee himself who took the initiative to perform lawn mowing and other outdoor tasks. Moreover, although the employer was aware the employee had lupus, it is not common knowledge that this condition is exacerbated by exposure to sun, and the record does not indicate that the employee ever notified the employer this was the case. Indeed, it appears that the employee routinely agreed to perform the assigned tasks and never told the employer that he had any objection to doing so or that it would adversely affect his health. Consequently, the employer was not given an opportunity to find any alternate tasks for the employee to perform. Under the circumstances, the commission sees no reason to conclude that the employee's quitting was a reasonable reaction to any act or omission by the employer.

The commission notes that, although the appeal tribunal decision was premised on a conclusion that the employee quit with good cause attributable to the employer, where an employee asserts that he was physically unable to perform the job, the separation is customarily analyzed under Wis. Stat. § 108.04(7)(c), which permits a worker to voluntarily terminate employment where he had no reasonable alternative because he was unable to do his work, but only where he has pursued and exhausted reasonable alternatives short of quitting and remains generally able to work and available for work after quitting. The commission has considered whether the employee's quitting could fall within the statutory exception contained in Wis. Stat. § 108.04(7)(c), but concludes it cannot. The employee did not pursue, let alone exhaust, reasonable alternatives to quitting, where he never notified the employer that he was medically unable to perform the assigned work. Moreover, the employee did not present any medical evidence demonstrating that the work he was performing was adverse to his health, nor did he contend that his doctor advised him to quit.

The commission therefore finds that in week 42 of 2004, the employee voluntarily terminated his work with the employer, and that his quitting was not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), or for any other reason permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 42 through 52 of 2004 and weeks 1 through 8 of 2005, in the total amount of $3,464, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 42 of 2004 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 the employee's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $3,464 to the Unemployment Reserve Fund.

Dated and mailed March 11, 2005
deceljo . urr : 164 : 1 VL 1059.204  VL 1080.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility, but is as a matter of law.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc: Kelly Furniture


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