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

MEREDITH J GESKE, Employee

CARMILL COMMUNICATIONS CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201898EC


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 about five months as an operator for the employer, an answering service. Her last day of work was September 9, 2005 (week 37), when she quit her employment.

The employee was paid $9.00 per hour when she started. She was promised a raise of fifty cents per hour after 90 days. However, she was not granted that increase. When the employer was asked why she was told this was due to financial problems with the new business.

The employee's work schedule varied. She requested changes in that schedule to accommodate her personal matters and the employer also requested changes because of staffing issues and other scheduling requirements. This issue was raised with her during a meeting on her last day of work at which time she also received several disciplinary notices. Because she was dissatisfied with several recent schedule changes and other aspects of her employment she quit at that time.

The issue in this case is whether the employee's quitting was for any reason that would allow the immediate payment of unemployment insurance benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 134 N.W.2d 412 (1965); Hammer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).

The employee contended that she quit because she was not given proper notice of scheduling changes and because her supervisor used profane language in the workplace. However, the commission is satisfied that changes in work scheduled were mutual requests on behalf of the employee and the employer. It was not shown that any conduct on the part of the employer in this request was so egregious as to justify the employee's quitting for unemployment purposes. Furthermore, the employee also used profane language in the workplace and the record did not disclose that she objected to this type of conduct on the part of the employer. Her reason for quitting was not for good cause regarding the language issue.

Finally, the employee asserted that she quit because she did not get a promised raise. However, the raise was due the employee in June. The employee did not terminate her employment until September. Courts have held that where an employee has not seen fit to quit because of past conditions or events that might have justified a quitting, the event which eventually triggers the quitting must in itself embody some element of fault on the part of the employer in order for the employee to resort to the prior conditions or events as good cause attributable to the employer for the quitting. Hur v. Radio Shack Tandy Corporation & DILHR, No. 153-082 (Wis. Cir. Ct. Dane County June 6, 1977). As previously discussed, the changes in the schedule were done for the mutual benefit of the parties, and did not reflect substantial fault on the part of the employer.

The commission therefore finds that in week 37 of 2005, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $941.00 for weeks 37 through 39 of 2005, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 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), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2005, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $941.00 to the Unemployment Reserve Fund.

Dated and mailed December 21, 2005
geskeme . urr : 132 : 1 : VL 1059.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not impart any demeanor impressions that he had of the witnesses that led to any credibility finding. The ALJ indicated that he believed the raise played a small part in the employee's decision to quit. For reasons set forth above the commission disagrees with the ALJ's conclusion that the employer's actions provided the employee with good cause attributable to the employer for quitting.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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