LASH L HOPKINS, Employee
BELMONT NURSING & REHAB CENTER, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
The final sentence of the second paragraph of the FINDINGS OF FACT and CONCLUSION OF LAW section is modified to read as follows:
"On November 2, 2004, the employee provided the employer with a statement from a physician's assistant stating that he could return to work on November 3 without restrictions."
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 46 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 his weekly benefit rate which would have been paid had the quitting not occurred.
Dated and mailed February 24, 2006
hopkila . umd : 115 : 1
VL 1005.01
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
On October 18, 2005, the employer received a report from two of the employee's co-workers that he had made a threat to use a gun against a third co-worker who was not present at the work site at the time.
The employer called the police as a result. The police conducted an investigation. As a part of this investigation, the police interviewed the manager who had received the report, the two employees who made the report, and the employee, and searched the employee's person and car. The police did not find a gun. The police generated an investigative report (exhibit no. 5) but did not arrest the employee or charge him with a crime.
The employer suspended the employee on October 18 in order to conduct its own investigation. The employer's administrator, the employee's supervisor, the employee's union representative, and a representative of the employer's corporate office met with the employee on October 24. At that meeting, the employee was advised that he could return to work if he underwent an anger management assessment/counseling but, if he refused, he would be terminated. The employee's union representative had participated in the formulation of this plan of action and supported it.
The employee admits that he understood the ultimatum but was unwilling to admit to his physician that he was "crazy, insane," and was unwilling to undergo an anger assessment/counseling. When the employee presented a return-to-work statement which did not address the anger management issue, he was given additional time to comply with the return-to-work requirement imposed by the employer. When he failed to do so by the extended deadline, he was discharged on November 11, 2005.
The first question is whether the employee quit or was discharged.
Generally, when, as here, an employee has an opportunity to maintain the employment relationship but fails to do so, the separation is a quit. See, Smith v. the Prudential Benrud Realty, UI Hearing No. 02202470EC (LIRC May 7, 2003); McCormick v. Beck's Service LLC, UI Hearing No. 03002625WK (LIRC Nov. 25, 2003); Werginz v. Krenn's Machine Inc., UI Hearing No. 04609760WK (LIRC Feb. 15, 2005).
The next question then is whether the employee's quitting satisfies any exception to the quit disqualification.
The only exception to the quit disqualification which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973).
The commission has been consistent in holding that a requirement for continued employment which the employer has a legitimate basis for imposing does not satisfy the good cause attributable standard. See, Smith, supra.; Werginz, supra.; Miller v. LIRC, No. 92-CV-2953 (Waukesha Co. Cir. Ct. Jan. 24, 1994); Burton v. Signicast Corp., UI Hearing No. 00603251MW (LIRC Oct. 23, 2000).
Although the employer did not prove that the employee actually made the threatening statement attributed to him on October 18, it did prove that it received reports from two of his co-workers that he had done so. Given the growing incidence of, and concern about, workplace violence, and the conflicting stories the employer had received, the commission concludes that the employer had a legitimate basis for requiring that the employee submit to an anger management assessment/counseling, and the employee, as a result, failed to sustain his burden to show good cause attributable to the employer for his quitting.
cc: Leanne Holcomb
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uploaded 2006/02/27