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

KRISTINE K SMITH, Employee

SERVICEMASTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005054WR


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. A credibility conference was conducted with the ALJ. On April 22, 2005 the commission ordered that additional testimony be taken by an ALJ on behalf of the commission on the merits of the case. The date of the hearing for additional testimony was May 25, 2005. Upon completion of that hearing, the matter was returned to the commission for issuance of a decision.

The commission has considered the petition and the positions of the parties, it conferred with the administrative law judge and has reviewed the evidence submitted to the ALJs at the original hearing and at the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for one year and nine months as an office assistant for the employer, an industrial cleaning business. Her last day of work was September 1, 2004 (week 36), when she quit her employment following an incident with the employer's owner.

On approximately six occasions prior to the employee's last day of work, the owner got angry, raised his voice and yelled, sometimes in the presence of others, when the employee's performance did not meet his expectations. She was troubled by these situations and complained to the owner and her immediate supervisor, the operations manager. She was not provided any general advice on how to avoid such situations in the future.

On the last day of work, the employer's owner was arguing on the telephone with an owner of a supply business regarding a past due bill. The employer's owner was upset, refused to pay the bill and yelled, using profanity and referring to the supply owner in a derogatory manner. When the phone call ended, the employer's owner went into the operations manager's office.

Approximately 20 minutes later, the other owner of the supply business called the employer's business. The employee spoke with him and he informed her that he would be reporting to the employer's business with others to discuss the owner's failure to pay the bill. The supply co-owner was using profanity and the employee put him on hold while she notified the operations manager and owner of the situation. Neither the owner nor the operations manager offered to speak to the co-owner; instead, they instructed the employee to tell the supplier if he brought others to the meeting, the police would be called.

Shortly thereafter, the employee was questioned as to the exact time the supplier was going to arrive at the business. The employee did not know and the owner yelled, directing her to get that information by calling the supply business back. Less than five minutes later, a vendor walked into the employer's business and the employee greeted her. When the employee did so, the owner began yelling at the employee for not calling the co-owner of the supply business immediately. The vendor apologized for the situation and the owner responded that the vendor should apologize as "she was rude." The employee was upset by the owner's behavior and started crying. When the owner left the area, still expecting the employee to make the telephone call, the employee decided to quit her employment immediately. Following the quitting, the employee sought payment of unemployment insurance benefits.

Wis. Stat. § 108.04(7) provides that a worker who quits his or her employment will be disqualified for unemployment insurance benefits unless the quitting was with good cause attributable to the employer or was within another statutory exception.

The issue before the commission is whether the employee's quitting fell within an exception to allow for benefit payment.

The employer contended that the employee's quitting was not with good cause attributable to the employer. Specifically, the owner denied "yelling at" the employee and argued that the employee unreasonably delayed her return call to the co-owner and was laughing with the vendor instead of performing the task he assigned. The employer's contention cannot be sustained. In particular, at the original hearing, the employee, the owner and the operations manager provided differing accounts regarding the last incident. The commission remanded the matter to allow the employee sufficient time to subpoena a co-worker from the business who witnessed the owner's behavior and also to subpoena one of the owners of the supply business. At the remand hearing, those witnesses testified regarding the owner's behavior, supporting the employee's version of the events. Based upon this, the commission credits the employee's testimony both as to the last incident and her prior discussions with the employer's management about the owner's prior behavior.

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). Further, while it is a general principle that before a quitting will be found to be with good cause attributable to an employer the employee should give the employer opportunity to correct the matters complained of, this principle is inapplicable when to do so would be futile. Denning v. Northwoods Family Eyecare LLC, UI Dec. Hearing No. 02201829EC, (LIRC April 30, 2003). In Mayer v. Hoover Well Drilling Co. Inc., UI Dec. Hearing No. 03604770RC (LIRC December 23, 2003), the commission found that a quitting was with good cause attributable when an owner on three occasions directed rude, callous and profane language at an employee when he notified the owner of his work injury situation and informed the owner that he did not approve of such treatment.

In this case, the owner placed the employee in the precarious position of dealing with an angry supplier after he escalated the supplier's anger by his own poor behavior. The owner then inappropriately took out his frustrations by yelling at the employee when she did not immediately call the supplier back. Yet, in less than five minutes, a vendor entered the business and the employee also had an obligation to deal with her. The owner, who already had lost his temper, then berated the employee and the vendor. Although the employee conceded that this was the most severe outburst involving the owner when compared to the prior incidents, the employee had complained in the past and the situation was clearly not improving. Under these circumstances, the commission finds the owner's behavior was so substantial and unreasonable as to justify the employee's quitting.

The commission therefore finds that the employee's voluntary termination of employment in week 36 of 2004 was 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, if otherwise qualified.

Dated and mailed July 8, 2005
smithkr . urr : 150 : 1 VL 1005.01 VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission's reversal is based upon the additional information obtained at the remand hearing and not present before the original administrative law judge.

 


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