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

JOHN N MARKOWSKI, Employee

NORTHWOOD SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201398MD


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 began work for the employer on September 11, 2006, under a contract as a school principal for the employer, a school district. He last performed services on June 8, 2007 (week 23).

On January 16, 2007, the employer gave the employee what the employer referred to as at the hearing as a "preliminary notice indicating that the board was not happy with his job performance."

On January 24, 2007, the employee gave the employer a letter indicating that he would resign effective July 1, 2007 (week 27). By subsequent agreement, the employee's last day of work was June 8, 2007 (week 23), but the employer paid the employee until June 26, 2007 (week 26) or June 30, 2007 (week 26).

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged.

The process of renewing or nonrenewing the employee's contract is governed by Wis. Stat. § 118.24. Pursuant to Wis. Stat. § 118.24(7), prior to giving notice of refusal to renew the employee's contract, the employer must give the employee, at least five months prior to the expiration of his contract, a preliminary notice that the board is considering nonrenewal of the contract. Once the employee received the preliminary notice, he had a right, within seven days of receiving such notice, to file a written request with the board for a hearing before the board before being given written notice of refusal to renew his contract. The employee could not be dismissed except by a majority vote of the full membership of the school board. Wis. Stat. § 118.24(6).

In Stahlman v. Whitnall School District, UI Dec. Hearing No. 06002990MD (LIRC January 11, 2007) and Collins v. Green Bay Public School District, UI Dec. Hearing No. 06401193GB (LIRC December 29, 2006), the commission reiterated its position that for a resignation to be considered a discharge, the employee must establish that a hearing before the board would have been pro forma, and that his discharge was a certainty. In Stahlman, the employee made such showing by presenting evidence that the school board always followed the principal's recommendation. Here, the employee would have had to show that when the board issues a preliminary notice, the majority always votes for dismissal.

The employee did not demonstrate that he resigned because the majority of the board would vote to dismiss him. His resignation simply indicated that he would not stay because he had lost the confidence of his superiors. The employee did not establish that if he had not resigned, his discharge would have been a certainty. Accordingly, the employee voluntarily terminated his employment.

Generally, an employee who voluntarily terminates his employment is ineligible for unemployment insurance until he meets the requalification requirements of Wis. Stat. § 108.04 (7)(a), unless the voluntary termination falls within an exception to the quit disqualification. The only potentially applicable exception is Wis. Stat. § 108.04(7)(b), which allows immediate unemployment insurance eligibility for an employee who quits his employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial, and unreasonable act by the employer. Worachek v. Koch Brothers, Inc., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965).

The next issue to be decided is whether the employee voluntarily terminated his employment for any reason constituting an exception to the quit disqualification.

At the hearing, the employee generally testified that he felt harassed by being written up for various things that he did not feel were appropriate. The employee gave no specifics. The employee's testimony did not establish that he quit his employment with good cause attributable to the employer.

The commission therefore finds that in week 24 of 2007, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $3,877.00 for weeks 27 through 37 of 2007, of which $445.00 is included in overpayment amounts set forth in other notices of overpayment, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2007, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $3,432.00 to the Unemployment Reserve Fund.

Dated and mailed November 2, 2007
markojo . urr : 132 : 1 : MC 629  VL 1007.15

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's reversal is not based on credibility. The commission has reached a different legal conclusion than that reached by the ALJ.

The employer argues that the employee quit in week 27 of 2007, because the employer paid him until week 26. However, the employee last performed work in week 23 of 2007, and stopped performing services for the employer as of week 24 of 2007. In any event, the employee did not file a benefit claim until week 27 of 2007, and would not be potentially eligible for benefits until that week.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc: Attorney Kathryn J. Prenn


 

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