AARON J ABEL, Employee

RUSS DARROW PONTIAC NISSAN ISUZU, Employer

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:

The employee worked as an automobile salesperson about three months for the employer, an automobile dealership. His last day of work was October 30, 2004. He voluntarily terminated his employment effective November 1, 2004 (week 45).

The employee quit because he was not receiving commissions that he was entitled to. The employee did not receive a commission for 75 percent of split sales he was involved in. In August he did not get a split sale commission and spoke to a manager and his immediate supervisor. Six weeks later he received his $800.00 commission. Another time he was due a $300.00 commission on a split sale. He spoke to two managers, five to ten times, and was told that they would look into the matter. Later, he was told to speak with the salesperson himself. He did so and the salesperson indicated that he would give the employee the money when the salesperson had the money.

At the end of August the employee told the general manager that sales people were not putting his name on the paperwork to ensure that he got his share of the split sale commissions. At the end of October the employee gave notice of quitting. The general manager asked the employee to discuss the matter but the employee declined to do so. The employee considered that the employer had failed to take appropriate action despite his repeated complaints.

The issue to be decided is whether the employee voluntarily terminated his employment for any reason that would permit immediate benefit payment. Generally, an employee who voluntarily terminates his or her employment is ineligible for unemployment insurance until he or she meets the requalification requirements of Wis. Stat. § 108.04 (7)(a). An exception is (7)(b), which allows immediate unemployment insurance eligibility for claimants who quit their employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial, and unreasonable act or acts by the employer. Worachek v. Koch Brothers, Inc., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). It must be a reason which would justify an employee in becoming unemployed rather than in continuing working. Hur v. Radio Shack Tandy Corp., Dane County Circuit Court, Case No. 153-082, June 6, 1977.

The commission finds that the employee quit his employment with good cause attributable to the employer. The employee repeatedly complained to the employer that he was not receiving commissions due him. The employer took 6 weeks to resolve one such claim. On another claim the employer's ultimate advice was for the employee to try to obtain the commission from another salesperson. It was not the employee's obligation to seek out his co-workers, determine what monies were due him from each worker, and to make arrangements to obtain commissions due him. The employer was responsible to ensure that the employee received the commissions due him. The employee had given the employer ample opportunities to address his complaints. The employer failed to take reasonable and lasting measures to ensure the employee received the pay to which he was entitled.

The commission therefore finds that in week 45 of 2004, the employee voluntarily terminated his employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2004, if he is otherwise qualified.

Dated and mailed August 4, 2005
abelaar . urr : 132 : 1 : VL 1005.01  VL 1059.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The employee's testimony was uncontested as the employer did not appear at the hearing. The commission has reversed the ALJ's decision because it reaches a different legal conclusion when applying the law to the facts of the case.

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uploaded 2005/08/08