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

DAWN M CARMICHAEL, Employee

CEDAR SQUARE LLC, Employer

 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605933MW


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 affirms the decision of the ALJ in part and reverses the decision in part. The commission adopts the ALJ's findings and conclusions, in the decision's FINDINGS OF FACT and CONCLUSIONS OF LAW section, as its own, except as follows:

That part of the FINDINGS OF FACT and CONCLUSIONS OF LAW section beginning with the eighth full paragraph is deleted and the following substituted:

The employee was on a voluntary leave of absence from July 21 (week 29) through August 18, 2007 (week 33), and ineligible for benefits during that period of time by operation of Wis. Stat. § 108.04(1)(b)2.

The employee was discharged through layoff, and not for misconduct, effective August 19, 2007 (week 34), and eligible for benefits on and after that date if otherwise qualified.

The commission finds that the employee was paid benefits in the amount of $604 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 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, within the meaning of Wis. Stat. § 108.04(13)(f), the over-payment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).


DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2007, and continuing through week 33 of 2007. The employee is eligible for benefits beginning in week 34 of 2007, if otherwise qualified. The employee is required to repay the sum of $604 to the Unemployment Reserve Fund.

Dated and mailed January 16, 2008
carmida . umd : 115 : 8  MC 626  PC 712.4

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing part of his decision, because this reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

MEMORANDUM OPINION


The employee became aware in or before July of 2007 that the employer was experiencing financial difficulties, and she developed proposals to address these difficulties, including a proposal that her position be eliminated and her duties distributed among other, lower-paid positions.

The employee and the employer agreed that the employee's position would be eliminated and her duties redistributed, as she had proposed, effective August 20. It is a reasonable inference from this agreement that the employee's last day of work was intended to be August 18 (end of week 33).

The employer disputes that it was having financial problems. However, not only did the ALJ not credit the employer's testimony in this regard, but the fact that one of the employer's workers tried to cash his check at the employer's bank in July and was told there were insufficient funds in the employer's account to cover it, adds further support to the employee's version of events.

Moreover, the impetus for the elimination of the employee's position does not determine whether the separation was a quit or a discharge. The commission has consistently held that, when an employer agrees to lay off a worker, even if it was at the employee's request, the separation is a discharge. See, Jandourek v. Rogers Electric, UI Hearing No. 97401954GB (LIRC Dec. 5,1997); Shipman v. Robbins Mfg., Inc., UI Hearing No. 00001332BD (LIRC May 31, 2000); Mascheri v. Mathers Improvement Service Ltd., UI Hearing No. 03605258RC (LIRC Jan. 21, 2004). The rationale for this approach is that the employer had the option to accept or reject the employee's layoff request, and, by accepting it, was the moving party in the separation.

The elimination of the employee's position was not slated to be effected until August 20 (week 34), i.e., her last day of work was to be August 18 (week 33). The employee, however, did not perform services for the employer from July 21 through August 18 due to voluntary action on her part. The record does not show that this voluntary action was reasonably compelled by the words or deeds of the employer.

In the commission's opinion, the circumstances here support a conclusion that the employee took a voluntary leave of absence within the meaning of Wis. Stat. § 108.04(1)(b)2., and was ineligible for benefits as a result, from July 21 through August 18, 2007; but was eligible for benefits thereafter due to her discharge by the employer.

The commission also notes that the record in this matter raises a procedural issue.

At the beginning of the telephone hearing, the ALJ phoned the employee, using her cell phone number. When the employee answered, she told the ALJ that she had not received the hearing notice. The ALJ indicated that the hearing notice had been mailed to her address of record, and the employee then agreed the hearing could proceed. The employee, however, asked the ALJ to call her back if her cell phone cut out. Rather than recognize that the employee was at a disadvantage because she had been unable to prepare her case or her phone for hearing, and that it was possible this was not due to any fault on her part, the ALJ indicated he didn't "want to go through a bunch of gyrations" and the employee should "not try my patience with this stuff today, OK?"

When the employee's cell phone did cut out for the second time because of a low battery, the ALJ continued the hearing without her participation. The employee took issue with this in a letter faxed to Senior ALJ Riester later on the day of hearing, but the file does not indicate that ALJ Riester or anyone else in the department ever responded to her.

Even though this raises certain significant due process concerns, the circumstances do not merit further hearing.

It is reasonably apparent from the record that the employee had finished presenting her case in chief prior to experiencing difficulties with her phone connection. It is clear from the record that she had presented all the evidence she intended to in relation to her voluntary leave of absence beginning on July 21, that aspect of her case which does not support the award of benefits. Although the employer then called as witnesses the worker whose paycheck was rejected by the employer's bank, and the co-owner who had the July 19 phone conversation with the employee, the worker's testimony corroborated the employee's, and the co-owner's either corroborated the employee's or was not credited here. As a result, the ALJ's completion of the hearing without the employee's participation did not prejudice her interests in any cognizable way.

The employer, of course, was prevented from cross-examining the employee. However, the employer informed the ALJ that it was not requesting that the hearing be adjourned.

As a consequence, even though the ALJ should have been more conscious of the due process implications of his actions, further hearing is not merited.

 

cc: Attorney Michael Schuman


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