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

LINDA L BELL, Employee

GARDNER BARN EQUIPMENT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400152AP


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 the employer, a manufacturer of dairy barn equipment and bird feeders, for a year as an accounting manager. Her last day of work was March 14, 2006 (week 11).

During the course of her employment, the employer's owner, Kenneth Hepp, would frequently scream and swear at the employee. Mr. Hepp was dissatisfied with the employee's performance and would tell her she was useless and "fucking stupid." If the employee attempted to defend herself, Mr. Hepp would yell at her. This type of conduct occurred on at least a weekly basis.

On February 8, 2006, the employee experienced tightness of the chest and shortness of breath. Mr. Hepp advised the employee that if she took time off work to go to the doctor her job would be in jeopardy. The employee nonetheless left work to have an EKG performed, after which her doctor told her her problem was anxiety. The employee thereupon began looking for other employment.

On March 14, 2006, the employee submitted a letter of resignation. In her letter the employee indicated that she was resigning immediately because she could no longer tolerate the stress, humiliation, foul language, rudeness, intimidation and screaming.

The question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee 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 employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. "Good cause attributable to the employing unit" means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the part of the employer 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 commission has held that an employee cannot always expect polite treatment on the job. However, no employee should have to tolerate the constant yelling, swearing, and belittling remarks to which the employee was subjected. Moreover, while an employee is generally expected to explore alternatives short of quitting, here the perpetrator of the offensive conduct was the employer's owner, and there was no one to whom the employee could reasonably have been expected to complain prior to quitting.

The commission, therefore, finds that in week 11 of 2006, the employee voluntarily terminated her work with the employer, and that her quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 11 of 2006, provided she is otherwise qualified.

Dated and mailed May 24, 2007
bellli . urr : 164 : 1 VL 1080.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility. The administrative law judge indicated that his credibility impressions may have been influenced by the fact that the employee had a second hearing in which her evidence was less strong. The administrative law judge acknowledged, however, that the employee's witnesses' testimony was compelling and that the employer did admit to having engaged in some of the conduct alleged. The commission believes that the testimony of the employee and her witnesses was credible, particularly where the employer did not deny having engaged in the conduct alleged, but merely attempted to minimize its frequency and severity.


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