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

ALICIA R RUIZ, Employee

M & T COMMERCIAL HOLDING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003310LX


O R D E R

On March 23, 2007, the commission issued a decision that found that the employee was eligible for benefits because she quit her employment in week 29 of 2006, but for a reason that would allow immediate benefit payment. On April 18, 2007 the commission received correspondence from the employer requesting that the commission reconsider its March 23, 2007, decision. Wisconsin Statute § 108.09(6), provides that the commission may affirm, reverse, modify or set aside the commission's decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to that authority, the commission, on April 30, 2007, set aside its March 23, 2007 decision. The commission then carefully reviewed the record in this matter and considered the additional arguments raised by the employer. Pursuant to authority granted in Wis. Stat. § 108.09(6), the commission reinstates it's March 23, 2007, decision.

Dated and mailed May 18, 2007
ruizal2 . usd : 145 : 1 VL 1034  PC 769

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission considered the arguments raised in the employer's letter dated April 18, 2007. The testimony of the parties was inconclusive as to the date that the employee quit. The commission relied upon the employer's termination statement that indicates that the employee quit on July 22. That paperwork was completed on August 1, 2006, by Jason Thompson. The commission notes that this is not consistent with the employer's summary of the employee's hours, indicating that she last worked on July 22, and left half an hour early but quit on July 23. The employee, in her testimony was uncertain as to the day she quit but thought she quit around the week of July 23, and that she quit on that day. However, the employee also testified, on the first page of the synopsis, that she worked until July 20, 2006. In a written statement the employee gave to the department deputy who conducted the initial investigation of her unemployment insurance claim, the employee indicated that she quit her employment on July 22, 2006. This statement was given on August 9, 2006, fewer than 3 weeks after the quitting. The employee also indicated that she was not feeling well on the day that she quit and that she informed Jason that she was quitting. The commission notes that Jason, who may have had the most reliable evidence, did not testify at the hearing. The file also contains a statement by Jason to the adjudicator indicating that the employee definitely worked less than ten weeks and quit on July 22, her last day of work. A co-worker named Chad testified that the employee worked from May 16 until July 22 or 23. He indicated she worked on July 22 but left 30 minutes early. He also indicated she was scheduled to work on July 23 and worked an hour or two. This conflicts with Exhibit 1 which suggests she did not work on the date she gave notice. That testimony conflicts with testimony that she did not work at all on the day she quit. In addition, a co-worker named Cathy testified that the employee did not work at all on the day she quit. This case was difficult to resolve because the testimony was in conflict. The commission therefore determined that the most reliable evidence was that produced near the day the employee quit, specifically, the termination notice of Jason, and the employee's UCB-157 statement.

The commission's review of this conflicting evidence led it to infer that most probably, the employee did not perform her work for the employer for a period exceeding ten weeks.

The commission further notes that the employer's account is not charged in this circumstance. The commission further notes that in Cornwell Personnel Associates v. ILHR Dept. 92 Wis. 2d 53 (Ct. App. January 2, 1979) the court held that the named employer did not have standing to appeal the commission's decision when its unemployment reserve account was unaffected by the commission's decision.

 

cc: Attorney Notesong S. Thompson


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