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

WERNER NEUENDORF, Employee

LINCOLN LUTHERAN OF RACINE WISCONSIN, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94605965RC


The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that in week 28 of 1994 the employe voluntarily terminated his employment but not for a reason which allows the immediate payment of benefits. Accordingly, benefits were denied. The employe filed a timely appeal to an appeal tribunal. On September 9, 1994, the appeal tribunal issued a decision which reversed the initial determination. Accordingly, benefits were allowed. The Department of Industry, Labor and Human Relations filed a petition for commission review of the appeal tribunal decision. On November 2, 1994, the commission remanded this matter for further testimony.

Based on the applicable law, records and evidence in the case, and considering testimony offered at the remand hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has been working for a manufacturing company on a full-time basis for approximately 21 years. The employe also held two other part-time positions, including his duties for the named employer. The employe voluntarily terminated his part-time job with the named employer on July 11, 1994 (week 29), because of scheduling problems with his other work and the fact that his other part.-time employer increased his hours and hourly rate of pay.

Each year the employe's full-time employer closes down for a one week inventory period. That one week of inventory was scheduled to be held from July 17 through 23, 1994 (week 30). Whether the employe worked in that week depended on seniority and whether other more senior individuals chose to work. The employe was informed on his last day of work, July 15 (week 29), that he would not in fact work the inventory week.

The issue to be decided is whether the employe voluntarily terminated his part-time work with the named employer for any reason permitting immediate benefit payment.

Section .108.04 (7) (a), Stats., provides that an employe who voluntarily terminates his employment with an employer is ineligible for benefits until four weeks have elapsed since the end of the week of the quitting and the employe has earned four times his weekly benefit rate in covered employment performed after the week of quitting, unless the employe's quitting fits within some statutory exception. Section 108.04 (7)(o), Stats., provides "(The quit disqualification of section 108.04 (7)(a)) does not apply to an employe who terminates his or her work in one of two or more concurrently held positions, at least one of which consists of more than thirty hours per week, if the employe terminates his or her work before receiving notice of termination from a position that consists of more than 30 hours per week."

The commission determines that the employe's quitting does not fall within the statutory exceptions set forth above. Section 108.04 (7)(o), Stats., clearly indicates that the exception applies only if the quitting of the part-time work occurs before receiving notice of termination from a position which consists of more than 30 hours per week. In this case, the employe did not receive notice of termination from his full-time employer, the employer for whom he worked more than 30 hours per week. Rather, the employe was on a short-term definite layoff for a one week period. Under the unemployment compensation law, such definite one week layoff does not serve to terminate the employment relationship.

The employe's voluntary termination of his part-time job does not fit within any other statutory exception to the quit disqualification. While the employe was offered more work with another part-time employer, voluntary termination of his part-time work for increased hours does not constitute an exception to the disqualification found in section 108.04 (7)(a), Stats.

The commission therefore finds that the employe voluntarily terminated his employment in week 29 of 1994 pursuant to section 108.04 (7) (a), Stats., but not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $211.00 in week 30 of 1994 for which he was not eligible within the meaning of section 108.03 (1), Stats., and to which he was not entitled.

The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a departmental error. See section 108.22 (8)(c)2., Stats. Rather, the overpayment in this case resulted from the commission's reversal of the appeal tribunal decision.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits in weeks 29 through 49 of 1994. He is eligible for benefits beginning in week 50 of 1994, if he is otherwise qualified. He is required to repay the sum of $211.00 to the Unemployment Reserve Fund.

Dated and mailed February 8, 1995
132 : CD3802  VL 1020

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission has not reversed any credibility determination made by the administrative law judge. The commission has reached a different legal conclusion when applying the facts of the case, including the facts discerned at the remand hearing, to the law.

cc:
Gregory Frigo
Director, Bureau of Legal Affairs


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