Wis.LIRC UC Decision: Mixon, Henry - May 6, 2005 - VL 1005.01 - Cause attributable to Employer; generally; VL 1059.07 - Wages - Failure or refusal to pay - wage deduction - one time delay in pay due to innocent mistake by payroll personnel - isolated failure to pay on time not good cause to quit - supervisor's criticism of employee's plan to quit without notice due to dissatisfaction about late check, also not good cause to quit

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

HENRY L MIXON, Employee

SUN CLEANING SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600330MW

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 and after consultation with the ALJ, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Replace the fourth and fifth sentences in the third paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

On Friday, October 15, 2004 (week 42), the employee contacted his supervisor complain that his paycheck had not yet arrived and to notify the employer of his absence from work that evening. The supervisor criticized the late notice and they argued for awhile. The employee notified his supervisor of his quitting effective immediately.

Replace the fifth sentence in the seventh paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with:

The employer's payroll personnel made an innocent mistake with his address, the supervisor did not act unreasonably and the employee did not establish that he had no reasonable alternative except to quit.

DECISION

The decision of the administrative law judge, as modified, is affirmed. 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 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 6, 2005
mixonhe . umd : 150 : VL 1005.01 VL 1059.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that the employer's failure to timely pay him constituted good cause attributable to it for his quitting. 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). The commission has concluded that while employees must be able to trust their employers to timely satisfy their payroll obligations, an isolated failure of an employer to do so does not provide good cause for an employee to quit. Dornbush v. Manning Counseling Center Inc., UI Dec. Hearing No. 03007623MD (LIRC April 30, 2004) (citing Harycki v. Wiedemeyer Service Center, Inc., UI Dec. Hearing No. 91-603649 (LIRC Aug. 26, 1991)).

Thus, although the commission is sympathetic to the employee's financial situation and obligations, it does not find that the one time delay in pay constituted good cause attributable to the employer. The employee's pay check was inadvertently mailed to an incorrect address and was not delivered as expected on Monday, October 11, 2004. The employee's supervisor was unaware of the error and reasonably suggested that the employee wait a few days in case his paycheck was delayed in the mail. Then, on Friday, October 15, 2004, when the employee still had not received his paycheck in the mail, he notified the employer a few hours before his evening shift that he would be absent. The supervisor criticized the employee's lack of notice and the employee quit his employment effective immediately. The supervisor's comment regarding the notice was also not unreasonable and did not constitute good cause even in light of the pay delay. For these reasons as well as those mentioned by the administrative law judge, the appeal tribunal decision is affirmed as modified.

cc: Sun Cleaning Systems, Inc. (Milwaukee, WI)

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2005/05/09