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

MANDY J ANDERSON, Employee

SOUTHWEST INSPECTION LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003118MD


On April 6, 2006 a determination was issued finding that the employee's quitting with the employer was with good cause attributable to it and unemployment insurance benefits were allowed. The employer timely appealed and a hearing was conducted on May 11, 2006. The next day, May 12, 2006, an appeal tribunal decision was issued affirming the determination. The employer timely petitioned.

Given the absence of a complete digital record, the issues involved and to avoid any appearance of impropriety, on July 21, 2006, the Labor and Industry Review Commission (LIRC) ordered the matter for new hearing and decision. The new hearing was conducted by administrative law judge (ALJ) Ottenstein on August 30, 2006. On September 1, 2006, an appeal tribunal decision was issued, finding that the employee was not discharged but quit her employment, her quitting was not within any exception to allow for immediate benefit payment and she was overpaid unemployment insurance benefits that she was required to repay. The employee filed a timely petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to ALJ Ottenstein. 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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2006, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $5049 to the Unemployment Reserve Fund.

Dated and mailed November 3, 2006
anderma . usd : 150 : 8   PC 712.4

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee's petition does not specifically challenge any aspect of the August 30, 2006 hearing or of the September 1, 2006 decision. Notwithstanding this, the commission has carefully reviewed the record in this matter.

As explained by the ALJ, the general rule when a worker voluntarily terminates his or her employment is that his or her eligibility for unemployment benefits is suspended until four weeks have elapsed after the week of the quitting and the worker has earned wages in covered employment equaling at least four times his or her weekly benefit rate. There are exceptions to the general disqualification but the employee failed to establish at the hearing that her quitting fell within any those exceptions. Specifically, while the employee had been demoted, the employer's decision to demote her was not unreasonable given the employee's refusal to follow the reasonable directive that she contact the employer's owner whenever absent or tardy.

Additionally, although the record reflects that the employee did not participate in the telephone hearing after 31 minutes, the failure was due to the employee's failure to provide a telephone number from which she could adequately participate in the hearing. The cellular telephone number she provided for the hearing repeatedly became disconnected. After the second time of becoming disconnected, the ALJ warned the employee that the ALJ would not continue to call her and, if it continued to occur again, the ALJ would conduct the hearing without her. After a third time of telephoning the employee, the ALJ admonished her that she would not do it again. Thereafter, when the employee again became disconnected, the ALJ refused to call the employee at the new number provided to hearing office staff. The commission finds that the ALJ's actions in this regard were proper. The hearing notice warned the employee that her testimony would be taken by telephone and that the hearing "may proceed without you if you are unavailable when called." Also, Wis. Admin. Code § DWD 140.15(4) provides that the ALJ may exclude any person who disrupts the hearing. The employee's actions were disruptions to the hearing and the ALJ's decision was proper especially after her extraordinary efforts to allow the employee to participate in the hearing by telephoning her three prior times.

For these reasons, the commission affirms the ALJ's decision and adopts that decision as its own.



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uploaded 2006/11/06