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

TERRY P BRUCE, Employee

HAUSMANN MC NALLY SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604782MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 16 of 2004, and until four weeks have elapsed since the end of the week of quitting and the employee 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.

Dated and mailed May 4, 2005
brucete . usd : 150 : 1   PC 732  PC 714  PC 729  VL 1005.01

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that his quitting was with good cause attributable to the employer. As part of the petition, the employee made several specific claims as it related to the hearing record and procedures.

First, the employee argued that the synopsis was not an accurate representation of the hearing and requested that the digital record be reviewed. Additionally, he submitted a copy of a transcript. Following review of the digital record of the hearing, the commission finds that the petitioner has failed to establish that the synopsis is not sufficiently accurate and complete to fairly reflect the material and relevant testimony and other evidence taken at the hearing within the meaning of Wis. Admin. Code § LIRC 1.04. In particular, the two discrepancies cited by the petitioner are not material to the ultimate decision.

Next, attached to and included in the employee's reply brief are offers of additional facts and evidence not presented at the hearing. Yet, the commission's rules provide 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. See Wis. Admin. Code § LIRC 1.04. Although the commission does have the discretion to order the taking of additional evidence, that authority is exercised in a few exceptional circumstances that have not been established to exist. For these reasons, no additional hearing will be scheduled and the commission cannot consider and will not address the factual assertions made in the petition or the documents submitted with the petition, which are not supported by the record.

Lastly in terms of procedural arguments, the petitioner objected to the administrative law judge's limitation on evidence to that within a year of the quitting and also raised concern regarding the administrative law judge's impartiality as it related to his comments about the employer allowing the employee to take a pre-approved vacation. With respect to the administrative law judge's ruling to limit the evidence to the events within the last year of the quitting, the commission does not find this to have been an abuse of power. Wis. Admin. Code § DWD 140.16 provides that the,

administrative law judge shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible, but irrelevant, immaterial and repetitious evidence is not admissible.

Additionally, while the petitioner raised concern that the administrative law judge was biased, after a thorough review of the record, the commission finds no reason to believe that the administrative law judge was biased against the employee. In the context of the employee's claims that the partner treated him unreasonably, the administrative law judge's question whether the partner allowed the employee to go on a preplanned vacation without moving his office immediately as requested by the partner was not inappropriate. There is no reason in the record to believe that the administrative law judge decided the case on any basis other than the evidence which was credible. More importantly, the commission has reviewed the record in this matter without bias and is confident that the petitioner has received a fair decision.

As for the merits, the general rule when a worker quits is that he or she is ineligible for unemployment insurance benefits unless his or her quitting falls within an exception listed within the statutes. See, Wis. Stat. § 108.04(7). Under the "good cause attributable" exception, the quitting must be occasioned by some act or omission by the employer that is real and substantial, involving fault, and which justifies the quitting. Kessler v. Industrial Commission, 27 Wis. 2d 398 (1965). Although it is clear that the employee had difficulty with the communication style of one of the employer's partners, his contact occurred infrequently as the partner was absent about "half the time" and the employee dealt with the other partner, whom he respected and had admiration for, about 95% of the time. There were only three incidents in the last twelve months of his employment during which the employee felt the partner treated him unreasonably through reprimand or criticism. However, in each incident, the employer had legitimate concerns regarding the employee's actions. Moreover, the final incident did not involve any unreasonable or detrimental treatment of the employee. The employee had been called into a meeting to question whether he had improperly delegated any responsibilities to another worker. Prior to any adverse treatment by the partner, the employee decided to voluntarily terminate his employment. Thus, the employee's quitting was not with good cause attributable to the employer.

Additionally, while the employee testified that he was under medical care as of the time of the quitting, no certified medical evidence was offered to establish that his condition was the reason for terminating his employment or that he had no reasonable alternatives, within the meaning of Wis. Stat. § 108.04(7)(c).

For these reasons, as well as those mentioned by the administrative law judge, the commission affirms the appeal tribunal decision finding that the employee's quitting does not fall within any exception to allow for the immediate payment of unemployment insurance benefits.



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