GENE C KELLY, Employee

HATCH STAFFING SERVICES INC, Employer

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:

The employee worked for over two months as a temporary worker for the employer, a temporary staffing agency. His last day of work was February 25, 2007 (week 9). His quit date was February 26, 2007 (week 9).

The issue to be decided is whether the employee's quitting was for any reason that would permit immediate payment of unemployment benefits.

The employee began working for a client of the employer on approximately December 11, 2006 (week 50). His only means of transportation to the job was a friend who drove him back and forth to work every day. The client was not on a bus route and the employee did not have a driver's license. On February 25, 2007 (week 9), the employee's friend notified him that he could no longer drive the employee to work. Since the employee had no transportation to work he quit his job the next day, February 26, 2007 (week 9).

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).

Normally, it is the employee's responsibility to arrange for transportation to and from work. In addition, there is an exception in the law that provides the employee an opportunity to try a job that might have an excessive travel distance, or might have wages, hours or other conditions of employment that are not prevailing. The employee in this case worked at this job for more than ten weeks and as such, that exception does not apply.

However, the employee in this case had informed the employer, from the start of his employment, that the employee had no transportation and could only accept work on the bus route. The employee arranged a ride and accepted a job offer by the employer even though it was not on the bus route. However, the employee frequently asked the employer to transfer him to work on the bus route. The employer informed the employee that it was looking for work on the bus route. Further, the employer specifically informed the employee that it would find him work on the bus route, and that the employer would then send a replacement to the assignment the employee was working on when he quit. The employee, at the time he quit, explained to the employer that he had lost his ride, but the employer's only response was to inform him it would look for an assignment on the bus line. In this case, the employee accepted work that was over 20 miles from his house, in reliance upon the employer's continued statements that it would find the employee work on the bus lines. The employee acted to his detriment on the employer's assurances and when he was no longer able to find a ride, was forced to quit his employment. The employer failed to appear at the hearing to explain why it did not provide the employee work on the bus route when it assured him it would do so. The employer's actions amounted to good cause attributable to the employee for quitting.

The commission, therefore, finds that in week 9 of 2007, the employee voluntarily terminated his work with the employer, and that his quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 9 of 2007, if otherwise qualified.
Dated and mailed June 27, 2007
kellyge . urr : 145 : 1    VL 1005.01  VL 1015.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a differing assessment of witness credibility. The employee was the only witness in this case, and his testimony was not disputed. There was nothing to suggest that the employee had any reason for quitting apart from his lack of transportation. The commission reversed the ALJ because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

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