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

RONNA M DUNIGAN, Employee

PRUDENTIAL COMMUNITY REALTY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001818MD


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 six months as a receptionist for the employer, a real estate office. Her last day of work was April 11, 2006 (week 15), when she quit.

The employee quit over a series of critical remarks from her supervisor and the owner of the firm. During the course of the employee's employment, she experienced continual criticism about minor issues. On April 10, 2006, the employee signed a receipt for paperwork and keys turned in by an agent who had resigned. The employee later gave the material to the owner, who became upset and told her that she lacked the authority to accept the items on the employer's behalf. The employee explained that she had accepted them to ensure that the company got them back and had not intended to overreach her authority. During her lunch break, she telephoned the agent, who assured her that the other owner had indicated that there was no problem. She emailed that information to the owner.

On April 11, 2006, the owner called the employee into her office, angrily stating that she should not have spoken to someone who no longer worked for the company at work with the employer's telephone. In response to her attempt to explain that she had used her own cell phone during her break, the owner pointed a finger at her and accused her of a bad attitude. She told the owner that she did not have to take that treatment and quit. She was then escorted from the premises.

The issue to be decided is whether the employee quit her employment with good cause attributable to the employer.

The employee considered that the owner and her supervisor were hypercritical and made too much out of minor matters. However, the criticisms concerned actual business issues and were not personal.

The commission has repeatedly found that where an employee believes that she has been subjected to unfair criticism or treatment, the employee must establish that she 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 she is considering terminating her 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).

There is no evidence in the record that the employee alerted the employer's owners to her objections concerning the way that she was treated and her intention to quit if things did not change. Her reasons for quitting do not amount to good cause attributable to the employer nor do they fall into any other exception permitting the immediate payment of benefits.

The commission therefore finds that in week 15 of 2006, the employee terminated her work with the employing unit, within the meaning of Wis. Stat. § 108.04 (7)(a) of, and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $4,813.00 for weeks 15 through 34 of 2006 for which the employee was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1) and she is required to repay such amount to the Unemployment Reserve Fund.

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 department 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 15 of 2006, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $4,813.00 to the Unemployment Reserve Fund

Dated and mailed October 19, 2006
dunigro . urr : 178 : 1     VL 1005.01  VL 1080.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ regarding witness credibility and demeanor prior to deciding to reverse. The ALJ did not have specific demeanor impressions of the witnesses, although she recalled that the employee was assertive and confident. The commission does not reverse based on any differing assessment of witness credibility. Instead, it finds that the employee did not explore reasonable alternatives to quitting by alerting the employer of her dissatisfaction and intention to quit.

The law does not permit the commission to consider information provided by the employee with her petition which was not offered at the hearing and subject to cross-examination. The commission has not considered that material in making its decision.


Appealed to Circuit Court.

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