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

MICHAEL S PEDERSON, Employee

VITAGENICS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002526WR


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 the employer, a molecular products manufacturer, for about a year as an encapsulation specialist. The employee's job entailed putting powder into capsules. His last day of work was June 9, 2006 (week 23).

The employee had respiratory problems. Although the employer provided masks and respirators, in May of 2006 the employee's doctor recommended that he temporarily work in a dust-free environment. The employer therefore transferred the employee to the bottling room, where he was able to perform his work without a mask or respirator.

The employee had been working from 2:30 p.m. until 1:00 a.m., Monday through Thursday. He was receiving a $1 per hour shift differential. He commuted 60 miles to work each way. On May 16, 2006, the employer notified the employee that, starting the very next day, he would be working from 6:00 a.m. until 2:30 p.m. Monday through Friday, with no shift differential.

On June 9, 2006, the employee notified the employer he was quitting. The employee contended that he quit his job because of concerns with his health, because the employer changed his shift, and because he was generally unhappy with new management.

The question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer and must be real and substantial. Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965); Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979). A second statutory exception is Wis. Stat. § 108.04(7)(c), which applies where an employee quits, but has no reasonable alternative because he is unable to do his work.

The appeal tribunal found that the employee's quitting did not fall within Wis. Stat. § 108.04(7)(c), the "quit unable" exception, and the commission agrees. The employee's doctor temporarily restricted the employee to working in a dust-free environment, but did not recommend that he quit. The employee conceded that the employer accommodated his health condition by transferring him to the bottling room.

However, the commission believes that the schedule change provided the employee with good cause for quitting, pursuant to Wis. Stat. § 108.04(7)(b). The employer's actions in unilaterally instituting a drastic change in the employee's work schedule, without even twenty-four hours' notice to the employee, were unreasonable, and the employer did not appear at the hearing to offer any explanation for its actions. Further, the evidence indicates that the new schedule resulted in a financial hardship for the employee. The removal of the $1 per hour shift differential constituted a pay cut of close to ten percent. In addition, the new schedule added an extra work day to the employee's week, thereby resulting in additional commuting expenses associated with the 120 extra miles the employee would need to drive. The employee brought his concerns to the attention of his supervisor, but the employer took no action to address them. The employee quit shortly after the schedule change was implemented, and the commission concludes that this circumstance provided him with good cause for quitting.

The commission therefore finds that in week 23 of 2006, the employee voluntarily terminated his employment with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2006, provided he is otherwise qualified.

Dated and mailed November 2, 2006
pedersm . urr : 164 : 9  VL 1080.26

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge prior to reversing. The administrative law judge had no demeanor impressions to impart.


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uploaded 2006/11/06