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

MARY C SCHIER, Employee

RUSTIC STAG INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95201047EC


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about one and one-half years as a cook for the employer, a bar and restaurant. Her last day of work was on or about April 16, 1995 (week 16).

Sometime in March of 1995, the employe requested off for April 21, 22, and 23, 1995 (weeks 16 and 17). The employer granted such time off as long as the employe was able to find another cook to fill in and the employe did so.

On April 16, 1995 (week 16), the employer told the employe that there would be cleaning work available for her the weekend of April 28 through 30, 1995 (week 17 and 18). The employe ultimately declined to perform such work. The work would have been approximately four hours on Friday, and eight hours each on Saturday and Sunday, at $5.00 per hour. The employe thus could have earned wages performing cleaning work in week 17 of $60.00 and wages performing cleaning work in week 18 of $40.00.

The first issue to be decided is whether the employe was on a voluntary leave of absence granted for a definite period. The second issue is whether the employe was with due notice called on by her current employing unit to report for work actually available in weeks 17 and 18 of 1995.

Section 108.04 (1)(b), Stats., provides, in part, as follows:

"(b) An employe is ineligible for benefits:

". . . 2. While the employe is on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, whichever occurs first; . . . "

Section 108.04 (1), Stats., provides, in part, as follows:

"(a) An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specified in s. 108.05 (3) (a) to compute the benefits payable to the employe. The department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe."

The commission first finds that the effect of the employe's request for time off on April 21, 22, and 23, 1995, was a voluntary leave of absence granted for a definite time period. The commission's position as enunciated in Patricia Hanks v. County of Racine, Hearing No. 94606859RC (LIRC, 2/8/95), is that an employe who is on a voluntary leave of absence for portions of a week is denied benefits to the extent the claimant refuses work or fails to perform work where work is available. Thus, wages the employe would have earned had she not been on a voluntary leave are imputed to her and used to determine her benefit eligibility. On April 23, 1995 (week 17), the employe could have earned wages as a cook, at $6.00 an hour for four hours, for a total of $20.00 in wages for April 23.

The commission also finds that the employe's refusal to perform cleaning work the weekend of April 28 through 30, 1995 (week 17 and 18), implicates the due notice provision of section 108.04 (1), Stats. Under the due notice provision, if an employe is offered work with a current employing unit and fails to perform such work because the employe is unavailable for or unable to perform that work, wages that could have been earned for that work are again imputed to the employe and used to determine benefit eligibility. Thus, for week 17 the employe could have worked April 28 and April 29 a total of 12 hours, at $5.00 per hour, for wages in those two days of $60.00. This $60.00 would be added to the $20.00 the employe could have earned on April 23, for total wages in week 17 of $80.00.

The appeal tribunal also found that in week 18, which would encompass the offer of cleaning work on Sunday, April 30, 1995, the employe was with due notice called upon to perform work available by her current employing unit. The commission reverses such finding as a prior appeal tribunal decision found that the employe voluntarily terminated her employment on April 30, 1995. (1)   Of course, since the employe terminated her employment in week 18 of 1995, the employer was no longer her current employing unit.

The commission therefore finds that in week 17 of 1995 the employe was on a voluntary leave of absence granted for a definite period and that she is eligible for reduced benefits in that week pursuant to sec. 108.04 (1)(b) 2., Stats.

The commission further finds that in week 17 of 1995 the employe was with due notice called on by her current employing unit to perform work actually available and was unavailable for or unable to perform such work, within the meaning of sec. 108.04 (1), Stats.

The commission further finds that had the employe not been on a voluntary leave, and had the employe performed all work available in week 17 of 1995, she would have earned wages totaling $80.00 in that week.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employe is eligible for reduced benefits in week 17 of 1995. This matter is remanded to the department to recalculate the employe's benefit entitlement in week 17 of 1995, based on wages in that week of $80.00, and to resolve any resulting overpayment issues.

Dated and mailed September 27, 1995
schiema . urr : 132 : 1  AA 110 AA 128

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission's modification and partial reversal of the appeal tribunal decision is not based on a differing impression of witness credibility but upon reaching a different legal conclusion when applying the law to the facts of the case.



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Footnotes:

(1)( Back )  Mary Schier v. Rustic Stag Inc., Hearing No. 95200785EC, (App. Tribunal Dec., 6/5/95), affirmed by commission, July 13, 1995.

 


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