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

KIM LOWE, Employee

CAMEO CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601457MW


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 skilled nursing facility, for two and a half years as a CNA. Her last day of work was January 19, 2007 (week 3).

The employer requires that vacations be requested at least 30 days in advance. On November 7, 2006, the employee submitted a vacation request. The employee asked for three days off, from December 29, 2006, through January 3, 2007, at which time her children would be off of school. After submitting her request, the employee occasionally asked her supervisor whether she had heard anything, and was told she had not.

On December 26, 2006, the employer notified the employee that her vacation request was denied because she had submitted her request on a copy, rather than the original vacation request form. The employee was told to resubmit the request, but that she would need to wait 30 days. The employee ended up working during the three days in question, while her children took a holiday trip without her.

On January 11, 2007, the employee submitted another vacation request. This time she asked to be off work either the week of January 14 or the week of January 28. The employee talked with the director of nursing, who assured her that he would get it all straightened out and she would get her vacation. Instead, however, the employee was notified that the employer would not approve her request because she had failed to give the requisite 30 days' notice.

On January 19, 2007, the employee met with the human resources manager about her vacation time. The employee asked why her second vacation request was denied, and was told the denial was "self-explanatory." The human resources manager told the employee to resubmit her request and give 30 days' notice, to which the employee responded, "Better yet, I'll just give you my two-week notice." The employee called in sick the following day and, when she called back later to check the schedule, was told that her resignation had been accepted as of January 19.

The initial question to decide is whether the employee quit or was discharged.

The employee agreed that she was angry when the employer refused her vacation request, but denied quitting. However, the commission finds credible the employer's testimony that the employee provided her two-week's notice on January 19, 2007.  (1)

The next 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 employee quit her job after the employer repeatedly refused her requests for vacation time. In the first instance, the employee submitted a request to take three days off seven weeks in advance of the requested vacation time, but did so using the wrong form. The employer could have accepted the copy of the form submitted by the employee, rather than insisting upon the original, or in the alternative, it could have notified the employee immediately that she needed to resubmit her form so she could remedy the error in a timely fashion. Instead, the employer chose not to say anything to the employee until just prior to the requested time off, when it was too late for the employee to resubmit the vacation request within the employer's 30-day time limit. After this incident, the director of nursing assured the employee that the problem would be resolved and that a subsequent vacation request would be granted. However, when the employee submitted a new vacation request, it was again denied because it was not submitted 30 days in advance. The commission believes that the employer's conduct in this case was so unreasonable and egregious as to justify the employee's decision to quit.

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 5 of 2006, provided she is otherwise qualified.

Dated and mailed May 30, 2007
loweki . urr : 164 : 1 VL 1080.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: Although the commission conferred with the administrative law judge about witness credibility and demeanor, the commission's reversal is not based upon a differing assessment of witness credibility.



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Footnotes:

(1)( Back ) The employee intended to work until February 2, 2007, the end of week 5, but the employer would not permit her to do so. Consequently, if the commission were to find a disqualifying quit, the employer would be responsible for her benefits in weeks 4 and 5 of 2007, in which the employee was willing to work.

 


uploaded 2007/06/04