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

CHRISTOPHER P SMITH, Employee

INDUSTRIAL LADDER & SUPPLY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607345MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 38 of 2005, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed January 5, 2006
smithch . usd : 132 : 1  VL 1005

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found he voluntarily terminated his employment but not for any reason permitting immediate benefit payment. The commission notes that its review, by law, is limited to testimony presented under oath at the hearing. The commission cannot consider factual assertions made in the petition for review, or documentation submitted with the petition for review, that were not also made or submitted at the hearing. For example, the employee claims that because of his driving record, physical condition, and the mediation he was taking, he should not have been driving at all. These were not matters that the employee raised at the hearing. Further, the employee never alleged at the hearing that he was physically unable to perform the duties that were assigned to him.

The commission has repeatedly found that where an employee believes that he has been subjected to unfair criticism or treatment, the employee must establish that he explored alternatives short of quitting before it can be found that the quitting was with good cause attributable to the employer. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment over them. See e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., No. 02-CV-00409 (Wis. Cir. Ct. Milwaukee Co. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Dec. Hearing No. 99604071RC (Oct. 14, 1999); Lauer v. Bratley d/b/a Kentucky Fried Chicken & LIRC, No. 97-CV-405 (Wis. Cir. Ct. Douglas County July 20, 1998); Bowe v. U.W. Parkside, UC Dec. Hearing No. 97201101EC (LIRC Nov. 25, 1997); Gilkay v. Servicemaster of Stevens Point, UC Hearing Dec. No. 95002242WR (LIRC Sep. 28, 1995). If the employee notifies the employer of such concerns, and the employer fails to take reasonable and necessary steps to address the employee's concerns, good cause attributable to the employer will be found. See e.g, Opportunities Industrialization Center of Greater Milwaukee Inc., v. Barbara Dates & LIRC, No. 00-CV-7743 (Wis. Cir. Ct. Milwaukee Co. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Dec. Hearing No. 98402102AP (LIRC July 30, 1999).

In this case, the employee presented a number of complaints at the hearing about the duties assigned to him and his treatment by the employer. While the employee raised the matter of whether the employer would require two weeks notice of quitting, he did not specifically indicate to the employer why he was contemplating quitting. The employee never advised the employer of his specific complaints and that he was contemplating terminating his employment if the complaints were not addressed. Whether or not the employee believed the employer would act on his complaints, he was required to give the employer the opportunity to do so.

cc: Industrial Ladder & Supply, Inc. (West Allis, Wisconsin)



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