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

STEVEN A SECHRIST, Employee

GREENFIELD PONTIAC-BUICK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605496MW


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 twice as a sales consultant for the employer, a car dealership, first for eleven months, and most recently for two months, i.e., May 8 through July 17, 2006. His last day of work was July 17, 2006 (week 29).

The separation was a quit. The issue is whether this quit satisfies any exception to the quit disqualification.

The employee's base pay was $500 for every two-week pay period. It was the employer's practice, which the employee understood, that prorated deductions would be made to this amount for scheduled hours, other than vacation hours, not actually worked by the employee.

A worker qualified for a sales bonus of $200 for any month he was credited with selling 7-10 vehicles. The employee understood that half of this bonus would be paid at the end of each pay period the following month.

The employee was credited with selling 8 vehicles in June of 2006, and qualified for a $200 bonus, payable in two installments in July, as a result.

In the paycheck the employee received on July 14, prorated deductions, based on scheduled hours he had not worked from July 1-14, were applied to reduce both his base pay and his bonus for June sales. The employer had also followed this practice in regard to a bonus earned by another sales consultant for sales in May of 2006.

On June 30, a customer, who had been in twice before, phoned the dealership. Even though he had not worked with her in the past, the call was referred to the employee. The customer indicated that she was interested in purchasing a burgundy diesel truck before an advertised discount expired that day. The employee, realizing that the customer would not arrive by the time the dealership closed at 9:00 p.m., asked his manager whether they could stay open to effect the sale. The manager, who was required to be present for the sale, told the employee that he did not want to stay late, and the customer could get the discount if she came in the next day. The employee relayed this message to the customer who indicated she still intended to come in that evening. The employee left work at 9:00 p.m. Unexpectedly, the dealership had to remain open past 9:00 p.m. to accommodate a different transaction, and a sales person who happened to be present after closing was credited with the sale to the customer. The employee had not logged his contact with the customer as required by the employer in order to be credited with a sale.

On July 17, the employee requested a meeting with the employer's general sales manager. At that meeting, the employee referenced the charge he had filed against the employer alleging that he was being harassed because of his weight and physical appearance; and took issue with the proration of his $100 bonus and the employer's failure to credit him with the after-hours sale on June 30.

The general sales manager told the employee that it was the owner's practice to prorate a bonus based on an employee's attendance record, and did not agree, given that the employee had not logged his contact with the customer, that the employee should have been credited with the after-hours sale on June 30.

The employee did not indicate during the July 17 meeting that he regarded these matters as so serious that he intended to quit his employment. Instead, after the meeting, the employee prepared a letter complaining about the harassment he felt he had experienced, presented this letter to the employer's office manager, and left. The employee testified that he decided to quit as he was presenting the letter to the office manager. The employee did not report to work again after July 17.

Although the employee had a concern that he had not been properly credited with the sale of a convertible, and with the bonus calculation on the checks he received in August of 2006, it is undisputed that these concerns were not factors in his decision to quit his employment.

The employer's management team met after July 17 to address the concern expressed by the employee in regard to the proration of his sales bonus. The employee had been the first sales consultant to raise this concern. The management team decided the practice was unfair because the subsequent month's attendance was unrelated to the previous month's sales performance. As a result, the employee was paid the $100 bonus in one of the checks he received in August of 2006.

The only exception to the quit disqualification which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). 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 may be found. See, e.g., Opp. Indust. Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Hearing No. 98402102AP (LIRC July 30, 1999).

Although employees must be able to trust their employers to timely satisfy their payroll obligations, the commission has concluded that an isolated failure of an employer to do so does not provide good cause for an employee to quit. Harycki v. Wiedemeyer Service Center, Inc., UI Hearing No. 91-603649 (LIRC Aug. 26, 1991); Stanley v. Matthews Int'l. Corp., UI Hearing No. 0360654RC (LIRC Jan. 29, 2004). The commission has required that an employee show a pattern of such failures in order to demonstrate good cause attributable to the employer. Harycki, supra.; Gaworski v. Myers, UI Hearing No. 98605930MW (LIRC Feb. 17, 1999); Stallman v. Stay N Play Daycare & Preschool, UI Hearing No. 02200774EC (LIRC Aug. 2, 2002); Raymond v. Rawson Plumbing, Inc., UI Hearing No. 99608668MW (LIRC March 30, 2000); Arndt v. K & D Transportation Services, Inc., UI Hearing No. 00401816AP (LIRC Oct. 5, 2000). Here, the employee did not show that he quit as a result of a pattern of payment failures, i.e., he stopped reporting for work immediately after failing on one occasion to receive the bonus payment for the previous month's sales to which he believed he was entitled. Moreover, the employee did not provide the employer a meaningful opportunity to address his concern before he stopped reporting for work. See, Bunnell v. Nat'l. Bldg. Maint., Inc., UI Hearing No. 98401333AP (LIRC Sept. 30, 1998).

The employee did not show that the employer unreasonably failed to credit him with the after-hours sale on June 30. The employer consistently required that a sales consultant log a contact with a customer in order to receive credit for a sale, and it is undisputed that the employee failed to do this here even though he anticipated that the customer may report to the dealership the next day to complete the sale. Moreover, the manager who was present at the time, and with whom the employee discussed the matter, had no reason to anticipate during this discussion that the dealership would remain open long enough on June 30 to accommodate the customer.

Finally, it is not clear that the employee is offering the employer's alleged harassment of him as a reason he quit. However, even if he is, the evidence of record is insufficient to show that the employer's treatment of him was sufficiently severe or pervasive to justify his decision to leave his employment.

The commission therefore concludes that, in week 29 of 2006, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission finds that the employee was paid benefits in the amount of $2,533 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2006, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,533 to the Unemployment Reserve Fund.

Dated and mailed December 28, 2006
sechrst . urr : 115 : 1   VL 1059.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: John Pauls Greenfield


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