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

PETER L STENSEN, Employee

LIFE & SAFETY SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200108EC


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 approximately one and a half years as a service technician and salesperson for the employer, a fire protection business. His last day of work was December 18, 2006 (week 51), when he terminated his employment.

During the course of the employee's work for the employer, he worked under an individual who was personally abusive to the employee. Earlier in the employee's employment, the worker had been the employee's supervisor. However, in January 2006, the worker was demoted to a lead worker and the individual responsible for ordering supplies. After the demotion, the lead worker continued to select favorable job assignments to the detriment of the employee even when the lead worker's supervisor originally assigned the jobs to the employee. The employee complained and, in July 2006, the employer implemented a zone system for assignments, ending the lead worker's improper behavior in this regard.

However, the lead worker continued to direct abusive and obscene epithets at the employee. He also reminded the employee that, because of prior legal problems, the employee could not retaliate against the lead worker for fear of adverse legal consequences. The employee was under stress and tension as a result of this situation, exacerbating his high blood pressure.

The employee occasionally complained to his supervisor about the lead worker's behavior and the situation would temporarily improve. He did not notify the employer's human resources manager or seek assistance from her when the situation arose again, even though the employer's policy provides for such an alternative.

In September 2006, after a particularly explosive verbal altercation with the lead worker, the employee provided notice to the employer of his quitting. The employee agreed to continue to work until the employer found a replacement. The employee did not tell his supervisor of the lead worker's specific language although a co-worker did. At approximately the same time, one of the employee's co-workers was activated into military service and the employee assumed all of the co-worker's job duties, creating additional stress. After the employee provided his notice to the employer, his immediate supervisor directed the lead worker to stay away from the employee. The supervisor also asked the employee to reconsider his quitting. The employee did not do so and, when the employer hired a replacement, the employee's voluntary termination became effective on December 18, 2006 (week 51).

Departmental records reflect that the employee initiated a claim for unemployment insurance benefits. He filed weekly claims for benefits for the calendar weeks ending December 23, 2006 through April 28, 2007 (weeks 51 through 17). The initial determination denied unemployment insurance benefits. The appeal tribunal reversed, finding that the employee's quitting was with good cause attributable to the employer and benefits were allowed. Thereafter, employee was paid unemployment insurance benefits totaling $6,658.00 for weeks 51 of 2006 through 17 of 2007.

The employer petitioned the appeal tribunal decision and the issue before the commission is whether the employee's quitting fell within any exception to allow for the immediate payment of unemployment insurance benefits.

A worker who voluntarily terminates his or her employment is denied unemployment insurance benefits for a period of four weeks and until he or she has earned four times his or her weekly benefit rate in subsequent covered wages unless the circumstances of the quitting fall within one of the statutory exceptions to the general quitting disqualification.

Wis. Stat. § 108.04(7)(b), 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 necessarily corollary to these considerations is that, before good cause can be shown, the employee must establish that he or she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve the matters that the employee finds so serious that he or she is considering terminating his or her employment because of them. See e.g., Roth v. LIRC & Wisconsin Youth Co., Inc., Case No. 02-CV-00409 (Milw. So. Cir. Ct. August 5, 2002); Collier v. Rubbermaid & Sign Co., UI Hearing No. 99604071RC (LIRC October 14, 1999).

In this case, while the employee spoke with his supervisor about the lead worker's treatment of him, he never took his concerns to higher management when the situation failed to resolve itself permanently. As such, the employee did not follow the reasonable steps to allow the employer an opportunity to address his concerns. Additionally, the employee's willingness to continue to work almost three months after giving his notice undermines the argument that the conditions were so severe as to provide him with no alternative to quitting. For these reasons, the commission finds that the employee's quitting does not fall within the quit good cause attributable exception.

Wis. Stat. § 108.04(7)(c) permits a worker to voluntarily terminate employment in the case of health problems which may continue to make employment impossible, but only where the employee has pursued and exhausted reasonable alternatives short of quitting, and only where the employee remains generally able to work and available for work after quitting. Here, the employee did not exhaust reasonable alternatives before quitting, such as notifying the employer of his medical condition to determine if any alternatives were available. Additionally, no medical documentation was offered to establish that his quitting was because he was actually physically unable to perform his work for the employer.

Since the employee's quitting was not within any exception to allow for immediate payment of unemployment insurance benefits, he was not entitled to the $6,658.00 in unemployment insurance benefits that he was paid and the next issue before the commission is whether the employee is required to repay the overpaid benefits.

There is no evidence of employer fault in the erroneously paid benefits. Instead, benefits were initially denied by the determination and were allowed by the appeal tribunal decision. The overpayment was created when the commission reached a differing legal conclusion as to whether the employee's quitting fell within any exception. Thus, while the employee was not at fault in the creation of the overpayment, there is no departmental error, and repayment of benefits is required.

The commission therefore finds that in week 51 of 2006, the employee terminated his employment with the employer, within the meaning of Wis. Stat. § 108.04(7)(a) and that his quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $6,658.00 for weeks 51 of 2006 through 17 of 2007 for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) and he is required to repay the amount of overpaid benefits to the unemployment insurance fund as waiver of benefits recovery is not applicable under Wis. Stat. § 108. 22(8)(c).

DECISION

The decision of the administrative law judge is modified to conform with the above and, as modified, is reversed. Accordingly, the employee is ineligible for benefits in week 51 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 the 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 the sum of $6,658.00 to the Unemployment Reserve Fund.

Dated and mailed May 11, 2007
stenspe . urr : 150 : 1 VL 1005.01 VL 1080.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor prior to deciding to reverse the appeal tribunal decision. In particular, the commission's reversal is not based on any differing credibility assessment but due to a differing legal conclusion on the undisputed facts in the record.

 

FURTHER 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.I. 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:
Attorney Carl T. Bahnson
Life & Safety Service (Chippewa Falls, Wisconsin)


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uploaded 2007/05/15