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

BARBARA K BARTCZAK, Employee

SUPREME CORES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607150MW


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 one year as a production supervisor for the employer, a manufacturer of molds and cores. Her last day of work was July 7, 2006 (week 27).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

The employee had requested up to two months off work to go to Poland to assist her mother in moving from an apartment to a nursing home. For business reasons, the employer could not allow her supervisor position to be vacant for that length of time and denied her request. The employee then submitted her two-week notice on June 28, 2006 (week 26). She was going to work through July 11, 2006 (week 28), but the employer informed her that July 7 (week 27) would be her last day of work.

When the employee transmitted to the employer the notice of termination of employment, this put an end to the employment relationship regardless of what the employer did or did not do about the matter. After that notice of termination was accepted, the employment contract could only be reinstated by mutual agreement. Schallock v. Ind. Comm. & Sprague Electric Co., Dane County Circuit Court, January 28, 1958.

The employee did not leave for Poland until August 2, 2006 (week 31). After returning from Poland on September 5, 2006 (week 36), she contacted the employer, but they would not rehire her.

Wis. Stat. § 108.04(7)(a), provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

"Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues."

In this case, the employee quit in order to transfer her mother, who had Alzheimer's, from her home to a nursing home. This was necessary because the employee's mother had begun to engage in dangerous behavior and was not longer able to live safely on her own. There were no friends or relatives who lived in Poland that would have been able to move the employee's mother to a nursing home. The employee brought her situation to the employer's attention, and requested a leave of absence, but the employer was unable to accommodate the employee's request. The employer knew that the employee would quit if nothing could be done about her situation. Thus, the employee had no choice but to quit her job. As such, the employee quit her employment because of the health of a member of her immediate family, and had no reasonable alternative to quitting.

The next issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 28 of 2006, the week she initiated her benefit claim.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview. In this case, the employee was clearly able to work and available for work the week after she returned from Poland. Likewise, the employee was not able to work and available for work while she was in Poland caring for her mother. The employee did not leave for Poland until August 2, 2006 (week 31). The employee could have continued working for the employer until she left for Poland, but instead, on June 28 gave her notice. The commission therefore infers from the employee's actions in giving notice prior to leaving for Poland, that she was not, from week 28 of 2006 until week 31 of 2006, willing or able to work.

The commission further finds that in week 28 of 2006, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), but that as of week 28 of 2006, she was not able to work and available for work. However the employee was able to work and available for work on the general labor market as of week 36 of 2006, within the meaning of that section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits from week 28 of 2006, through week 35 of 2006. Thereafter, she is eligible for benefits, if otherwise qualified.

Dated and mailed February 27, 2007
bartcba . urr : 145 : 1 VL 1023.13

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor. The facts of the case were largely undisputed. Rather, the commission reverses the ALJ's decision because it reached a different legal conclusion based on the facts found by the ALJ.

 

NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.



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