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


RICHARD C BUNNELL, Employe

NATIONAL BUILDING MAINTENANCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401333AP


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 branch manager for about two years and two months for the employer a janitorial service business. He was informed upon hire that he would be paid a salary plus 5% commissions on his sales. He was also informed that he would receive an annual paid vacation. In November or December of 1997, the employe complained to his immediate supervisor that he had not received all of the commissions that he was due. His supervisor replied that he would check into it. The employe requested permission on more than one occasion to take vacation from the supervisor's superior. She denied the request, explaining that there was no one else to handle the office in his absence.

The employe raised neither concern again until early January of 1998 when he informed his supervisor that he was giving a thirty day notice of his quitting because of his unpaid commissions and that he had found another position. His last day of work for the employer was January 31, 1998 (week 5).

The issue to be decided is whether the employe's quitting was for any reasons that would permit the immediate payment of unemployment benefits.

Under Wis. Stat. § 108.04(7)(a), an employe 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 employe 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 employe's resignation is caused by some act or omission by the employer which justifies the employe's decision to quit. It involves some fault on the employer's part 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). The quitting must be for a reason that would justify the employe in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp. & DILHR, Dane County Circuit Court, Case No. 153-082, June 6, 1977.

While an employe is not required to exhaust all alternatives to quitting, in most cases he is expected to at least pursue some resolution to an employment issue prior to terminating his employment. See Gilkay v. Servicemaster of Stevens Point (LIRC, September 28, 1995);  Unemployment Compensation Benefits Manual, Volume 3, Part VII, Chapter I, June, 1992, page 40. In this case, the employe quit his job without giving the employer an opportunity to resolve the issues that were causing his dissatisfaction with his employment. After his supervisor's superior was hospitalized in November he had an opportunity to revisit the vacation issue with her replacement, but never raised it with him prior to quitting. Moreover, he failed to establish that he was due any commissions that were not paid. Under all of the circumstances, the commission is unable to conclude that the employe was justified in choosing to become unemployed rather than continuing to work for the employer.

The commission, therefore, finds that in week 5 of 1998 the employe voluntarily terminated his work with the employer, and not with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), or within any other statutory exception which would permit the immediate payment of benefits.

The commission further finds that the employe was paid benefits in the amount of $208 per week for each of weeks 16 through 38 of 1997, amounting to a total of $4784; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 5 of 1998 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. He is required to repay $4784 to the Unemployment Reserve Fund.

Dated and mailed: September 30, 1998
bunneri.urr : 178 : 6 VL 1005 VL 1059.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge concerning witness demeanor and credibility prior to reversing. The commission accepts the facts found by the ALJ but reaches a different legal conclusion when applying the law to those facts.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: NATIONAL BUILDING MAINTENANCE INC


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