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

MICHAEL A MALLETT, Employee

AMERICAN SECURITY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201615EC


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, an armored car business, for 12 years, most recently as branch manager for the Chippewa Falls terminal.

The issue is whether the employee's quitting satisfied any exception to the quit disqualification. A secondary issue is whether, if benefits are denied, recovery of overpaid benefits should be waived.

On Friday, July 1, 2005, the employee learned from co-worker Joe that Sandy, the employer's director of customer service, had told Joe that the employer intended to give the employee the choice of resigning or being discharged. Sandy was not in the employee's supervisory chain of command.

As a result, the employee contacted his supervisor, who was located in the employer's corporate offices in St. Paul, and asked him whether he was going to be let go. The supervisor told the employee that this was a conversation that they needed to have in person and he would make contact with the employee the following Tuesday morning, July 5. The supervisor phoned the employee on July 5 at noon and indicated that he intended to travel to Chippewa Falls that afternoon to meet with the employee. The employee told his supervisor that he would be taking the rest of the day off so that he and his wife could take their sick dog to the University Hospital in St. Paul, and suggested that he and the supervisor meet at the supervisor's offices later that day. The supervisor suggested instead that they schedule the meeting some time in the future. The employee also learned on July 5 that Jessica, from the employer's Milwaukee office, had been on her way to Chippewa Falls on Tuesday when she was contacted, after the employee's conversation with his supervisor, and told to return to Milwaukee.

The employee, on July 6, assuming from this series of events that the employer intended to discharge him, submitted his resignation, to be effective July 22, to the employer's CEO. Consistent with its typical practice, the employer effected the employee's separation immediately, but continued to pay him through July 22.

It was not reasonable for the employee to have concluded, before he submitted his resignation, that a discharge decision had already been reached. The employee based his conclusion on a second-hand rumor originating from someone not in his chain of command; on the fact that, after he asked whether he was going to be let go, his supervisor did not answer the question, but instead indicated this was a conversation they needed to have in person; on his supervisor's decision not to meet with him in St. Paul on Tuesday afternoon with, by the way, the employee's wife and, presumably, his sick dog, also present; and on the fact that a Milwaukee employee was told to return to Milwaukee while on the road to Chippewa Falls after the employee's conversation with his supervisor on July 5. This set of circumstances would be as consistent with the employer's intent to discipline the employee, as it claims, as it would be with an intent to discharge the employee.

The department petitioned for commission review. In its petition, the department argues that the employee failed to show good cause attributable to the employer for his quitting, citing a commission decision (Kothrade v. Nicolet High School District, UI Hearing No. 93603718MW (LIRC Feb. 1, 1994)), and a circuit court decision (Teske v. LIRC and Village of Lake Delton, Case No. 90-CV-300 (Wis. Cir. Ct. Sauk Co., July 3, 1991)), for the proposition that a resignation in anticipation of what the employee believes will be his imminent discharge is a quit without good cause attributable to the employer.

The commission agrees. See, also, Herman v. Bowler Public Schools, UI Hearing No. 93202096WU (LIRC Feb. 1, 1994) (resignation in lieu of what the employee considers impending discharge constitutes a quitting without good cause attributable to the employer); Bailey v. LIRC and Weyauwega Public Schools, Case No. 86-CV-505 (Wis. Cir. Ct. Dane Co., March 11, 1987); Abbott v. LIRC and Pepin Public Schools, Case No. 83-CV-16 (Wis. Cir. Ct. Pepin Co., June 20, 1984).

There is no other exception to the quit disqualification which would apply here. As a result, the employee's quitting did not satisfy any exception to the quit disqualification and benefits should be denied.

The remaining issue is whether recovery of overpaid benefits should be waived.

Wisconsin Statutes § 108.22(8)(c) provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

There is no evidence to support a conclusion that the overpayment resulted from fault on the part of the employee. The question presented then is whether the administrative law judge misapplied the law within the meaning of Wis. Stat. § 108.02(10e). The commission is unaware of any authority for the approach taken by the ALJ, which was inconsistent with the line of commission and court cases cited above. In addition, the department essentially conceded error on the part of the ALJ in its petition See, also, Simons v. State Capitol Credit Union, UI Hearing No. 00000990MD (LIRC May 24, 2000); Stroetz v. Edelweiss Cheese Co., Inc., UI Hearing No. 00002122WU (LIRC Aug. 8, 2000).

The commission therefore concludes that, in week 30 of 2005, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission finds that the employee was paid benefits in the amount of $4,935.00 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a department error, and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2005 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 her weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $4,935.00 to the Unemployment Reserve Fund.

Dated and mailed November 15, 2005
mallemi . urr : 115 : 1 VL 1007.15  BR 335.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

cc:
American Security (Chippewa Falls, Wisconsin)
Daniel J. Larocque, Director
Bureau of Legal Affairs
UI Division


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uploaded 2005/11/22