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

PENNY L BRUNETTE, Employee

ONEIDA TRIBE OF INDIANS OF WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402964GB


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. On page 3, delete full paragraph number 7 and paragraph 8 and insert therefore:

In this case, the employer did not provide information requested by the department regarding the actions that led to the employee's separation from her employment. At the hearing, the employer identified the number used by the department as the employer's job line. However, the same number was the general number for the human resources department. While the witness may not have received the department's message on her personal line, the department left the information in a manner reasonably calculated to notify the employer of the need for a response. No timely response was made. Therefore, the employer's failure was not for good cause and constitutes employer fault.

Accordingly, benefits paid to the employee prior to the end of week 2 of 2007, when the appeal tribunal decision was issued, which total $2655, will remain charged to the employer's reserve account. There is no evidence of employee fault in this case. Pursuant to Wis. Stat. § 108.04(13)(c), no overpayment is created.

The commission further finds that the employer failed, without good cause, to provide correct and complete information requested by the department during a fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (g).

The commission further finds that benefits of $2,655.00 paid erroneously as a result of the employer's failure to provide information and without employee fault are not overpaid and shall remain charged to the employer's reserve account, pursuant to Wis. Stat. § 108.04(13)(c) and (g)."

2. On page 4, delete full paragraphs 1, 2, 3, 6 and 7.

3. In the DECISION paragraph, delete the final two sentences and insert:

"There is no overpayment as a result of this decision. The employer remains charged for the erroneously paid benefits."

DECISION

The decision of the administrative law judge, as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 45 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 quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. There is no overpayment as a result of this decision. The employer remains charged for the erroneously paid benefits.

Dated and mailed May 2, 2007
brunepe . umd : 178 : 1   BR 319.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ regarding her finding that the employer credibly testified that the number used by the department adjudicator was the wrong number. The ALJ found the witness testimony credible. However, the employer's letter head indicates that the number used by the department is also the main number for the employer's human resource department. The employer's witness was not fully forthcoming in her testimony. The commission has accordingly reversed and found employer fault.

 


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uploaded 2007/05/29