STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JO M GARNER, Employe
SPEAKEASY, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602351MW
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 the applicable law, records and evidence in this case, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked as a bartender and bar manager for the employer, a tavern business, for approximately 12 months. Her last day of work was December 31, 1997 (week 1). A previously tendered 30-day notice of resignation became effective January 1, 1998 (week 1).
The issue to be decided is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits.
The employe had worked on a part-time basis at the beginning of her employment. Approximately one month later, her hours of work were increased to above 40 per week on a regular basis. She made sporadic requests for reduced hours thereafter, through October of 1997, citing an adverse effect on her general health. The employer would advise her to "toughen up" and not be a "baby." Prior to November 22, the employe informed the employer that her friend, who was also a bartender, was willing to work some of the employe's hours. The employer did not hire the friend. On or about November 22, 1997 (week 47), the employe suffered a miscarriage. She contacted the employer on the following day to inform it that she needed a week off. The employer responded "Who the fuck do you expect to work the hours? I don't bartend." She informed the employer that she would be at work in a week.
At the end of her time off the employe again asked for a reduction in hours, but was told that it was difficult to find help and she would have to work the scheduled hours. She then submitted her resignation. The next day, the employer asked her to reconsider her resignation. The employe asked for a leave to take care of medical and psychological problems she was going through. She also asked to return to the hours for which she was originally hired. The employer indicated it was impossible to give her a leave because it had no one else to work the hours. The employer indicated, as it had when the employe requested reduced hours in the past, that it would try to find another worker. Prior to the employe submitting her resignation, the employe's friend had again offered to bartend for the employe but the employer declined the offer. The employe's resignation remained in effect.
The employe's medical doctor with whom she was treating for her physical condition submitted a certified medical report (UCB-474) in which he stated that as of January 1, 1998, the employe was not able to perform work as a bartender. The employe's diagnosis was pelvic pain and abdominal bleeding. The report indicated that the employe was to avoid prolonged standing. The employe's psychiatrist also submitted a certified medical report (UCB-474) in which he stated that as of January 1, 1998, the employe was unable to perform work as a bartender. She was advised to work in a sedentary and less stressful line of work.
The commission finds that the employe voluntarily terminated her work with the employer because she was unable to continue that work. The employe provided certified evidence from two doctors that she could not in fact continue working for the employer as a bartender. The commission further finds that the employe was left with no alternative but to terminate her employment. The employe had notified the employer that her doctor advised her to reduce her hours due to her excessive bleeding. The employer never asked for medical documentation to support her need for a reduction in hours. While the employer indicated it did not have personnel to substitute for the employe, this was due at least in part to the fact that the employer itself was not willing to bartend and had rejected the offers of the employe's friend to substitute for the employe. Further, the employer did not appear at the hearing to offer its own explanation for denying the employe's requests or to explain what efforts it made, if any, to obtain relief for the employe.
The commission therefore finds that in week 1 of 1998, the employe voluntarily terminated her work with the named employer because she was unable to do that work and had no reasonable alternative to quitting within the meaning of Wis. Stat. § 108.04(7)(c).
DECISION
The decision of the administrative law judge is reversed with respect to whether the employe quit her employment because she was unable to do her work and had no reasonable alternative. This matter is remanded back to the hearing office for a hearing and decision, by a different administrative law judge, regarding whether the employe was able to work and available for work at the time she initiated her benefit claim.
Dated and mailed: September 16, 1998
garnejo : 132 : 1VL 1023.10
/s/ David B. Falstad, Chairman
Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did speak with the administrative law judge regarding witness credibility and demeanor. The administrative law judge found significant that the employe worked after submitting her resignation and that her resignation letter was upbeat. However, two medical professionals indicated that the employe was not able to work as a bartender as of January 1, 1998. The fact that the employe did work after submitting her resignation does not mean that it was medically advisable for her to do so. Indeed, many times physical restrictions placed on an employe do not indicate an actual inability to do a physical activity, but the medical opinion of the doctor that the employe should not engage in the physical activity. Second, the employe explained that she liked the customers at the employer and felt that they were like family. The employe further explained that she did not want to leave on bad terms. The commission cannot find that her positive resignation letter impugns her credibility as to the reason for quitting her employment when her testimony was unrebutted, she provided witnesses who supported her testimony, and the resignation letter specifically noted that "The double shifts are just far to(sic) hard on me. And I can no longer do them."
Finally, the administrative law judge reasoned in his decision that the employe did not present the employer with any written medical restrictions. However, the employer was aware of her miscarriage and the employe requested time off due to her physical and psychological problems and notified the employer that she had been advised by her doctor to reduce her hours. If the employer's refusal to reduce the employe's hours was because it was unable to replace the employe, then written medical evidence would have not changed such inability. If the employer was able but unwilling, as its refusal to hire the employe's friend suggests, and a medical statement would have changed the employer's decision, then the employer could have told the employe as much. The fact is that the employer knew the employe needed time off due to her physical and psychological problems. If the employer was basing its decision on doubts as to whether the employe had legitimate medical problems or medical complaints justifying the reduction in hours or request for time off, it could have asked for medical documentation. Of course, the employer's motivation for denying the employe's request for time off is not known as the employer did not appear at the hearing to offer testimony in its own behalf.
Quitting due to one's health is a statutory exception to the quit disqualification. However, in order to be eligible for benefits the employe must be able to work and available for work on the general labor market. The medical statements submitted at the hearing place the employe's ability to work into question. Therefore, the commission has remanded that issue to the hearing office for resolution.
cc:
ATTORNEY DAVID M SKOGLIND
HALE SKOGLIND & WAGNER SC
ATTORNEY DENNIS J WEDEN
GIESE & WEDEN
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]