CAROLAN S SMITH, Employee

DITTMAR REALTY INC, 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. On August 9, 2006, the commission remanded this matter for further hearing which was held on September 6, 2006.

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:

The employee worked as a bookkeeper for the employer, a realty business, for 16 years. Her last day of work was March 17, 2006 (week 11), when a previously tendered notice of resignation became effective.

The employee noted irregularities in invoicing activities from one property manager commencing in December of 2005. In summary, paper evidence existed showing the manager billed items to the employer's account for payment and later resold such items for personal profit. The employee disclosed this information to the owners of the business. After the manager was confronted with the documentation of his actions, the manager forfeited a yearly bonus and pay raise, but was permitted to keep his job. The employee noted continuing similar activity on the part of the manager in January of 2006, and disclosed the evidence of this continuing activity to the same ownership representatives. After a discussion in March with the property manager, no disciplinary or fiscal action resulted. The employee was advised that the property manager explained all situations to the satisfaction of the employer. The proximate cause for the employee's resignation dated March 3, 2006, was advice from a mental health professional that she quit, together with the employee's belief that the same property manager was manipulating sales of items to tenants in such a manner as to evade payment of state sales tax due from such transactions. No medical documents were tendered to the employer recommending changed work hours, duties or contacts prior to her last day of work.

The issue to be resolved is whether the employee's termination of employment was within one of the exceptions to the general benefit suspension accompanying a quitting.

The employee argued that her treating mental health professional opined that the only resolution to the conditions present over the last four months of work was for her to remove herself from her employment.

Wis. Stat. § 108.04(7)(a), provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

In this case, the employee presented at the hearing a certified medical report (UCB-474) filled out by her doctor that specifically found that as of March 19, 2006, the employee was not able to perform her work for the employer. The employee's doctor advised her to seek other work, indicating that she could perform the same work she previously performed as long as she worked for a different employer. While the employee, under the law, is required to exhaust reasonable alternatives prior to quitting, in this case, there were no alternatives available to the employee that would have allowed her to retain her job. The employee's doctor specifically indicated that the only restriction upon the employee's ability to work was that she discontinue working for the employer. Therefore the employee was not required, prior to quitting her job, to request that the employer provide any accommodations.

The second issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 11 of 2006.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

The employee's UCB-474 indicates she is able to work, with the sole restriction being that she not work for the employer. As such, the commission concludes that in week 11 of 2006, the employee was able to work and available for work.

The commission therefore finds that in week 11 of 2006, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), and that the employee was able to work and available for work on the general labor market as of that week, within the meaning of that section.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2006, if otherwise qualified

Dated and mailed October 13, 2006
smithca . urr : 145 : 1 VL 1023.10  AA 120

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a different assessment of the credibility of the witnesses; rather the commission reversed the ALJ's decision as a matter of law. Further, the commission based its decision in part on evidence presented at the remand hearing.

NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/10/16