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


JEROME D BLOCKTON, Employe

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97603722MW


On May 16, 1997, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing immediate eligibility for benefits. The employe timely filed a request for hearing on the adverse determination, and hearing was held on June 16, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On June 20, 1997, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer timely filed a petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about one month as an assembler and packager for the employer, a temporary help firm. His last day of work was February 28, 1997 (week 9). The issue to be resolved is whether the employe voluntarily terminated his work with the employer and, if so, whether such termination fell within any of the exceptions which would allow the immediate payment of benefits. The commission concludes that the employe quit his employment, but not for a reason constituting an exception to the general quit disqualification of Wis. Stat. § 108.04 (7)(a), and so reverses the appeal tribunal decision.

On March 3, 1997 (week 10), the employe refused an offer of continued employment by the employer at Milwaukee Seasonings in Germantown, Wisconsin. It has been consistently held that a worker who refuses an offer of continued employment with his employing unit, has voluntarily terminated his work. Under the circumstances, the employe voluntarily terminated his work with the employer, within the meaning of Wis. Stat. § 108.04 (7)(a).

The employe did not accept the continued employment because he did not have transportation to the assignment in Germantown. There is no public transportation there and the employe's car was disabled with alternator problems. It is an employe's responsibility, however, except in limited circumstances not present here, to present him or herself at the work site for work. Although the employe's circumstances are unfortunate, they do not constitute an exception to the general benefit disqualification of Wis. Stat. § 108.04 (7)(a). The commission therefore finds that, in week 10 of 1997, the employe voluntarily terminated his employment with the employer, but not for a reason constituting an exception to the benefit disqualification of that section of the statutes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 10 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

The commission also finds that the employe was paid benefits totaling $858.00, for weeks 15 through 21 of 1997, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1).

The commission finds, finally, that the employe's receipt of benefits was due to departmental error, within the meaning of Wis. Stat. § 108.02 (10e), thus requiring waiver of repayment of the overpayment. Specifically, the administrative law judge held that the employe had good cause, pursuant to Wis. Stat. § 108.04 (7)(e), to have refused the employment with the employer in the first instance. This section of the statutes requires that the good cause in question be in existence when the employment relationship begins. When the employment relationship began, however, the employe did not have the automobile difficulties that later prevented him from accepting the assignment at issue in this case. Wis. Stat. § 108.04 (7)(e) therefore is inapplicable to the facts of this case. The commission therefore finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), because the overpayment resulted from departmental error and not employe fault as provided in Wis. Stat. § 108.04 (13)(f).

Dated and mailed November 21, 1997
blockje.urr : 105 : 1  BR 335.01

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's subsequent reversal was not based upon a differing credibility assessment from that of the administrative law judge, but rather upon its conclusion that the assignment refusal at issue was not properly resolved under Wis. Stat. § 108.04 (7)(e) but rather under Wis. Stat. §§ 108.04 (7)(a) and (b).


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