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

SCOTT P EDMINSTER, Employee

PER MAR SECURITY & RESEARCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402237AP


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 by the department and the employee.

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

(1) Delete paragraphs twelve through twenty under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW and insert therefor:

Department records indicate that the adjudicator left messages with the employer's agent for unemployment insurance purposes, a TALX representative, on August 21, 28 and 31 2007, requesting information regarding the employee's separation from employment. Specifically, the August 31 message stated that rebuttal and additional information was needed regarding, among other things, why the employee was discharged in August for an incident in June, since the employee had ceased using the phone for personal use as directed by the client. The employer did not respond to the department's request for additional information. The adjudicator's determination states:

The employee was discharged for using a client's phone for personal reasons. The employee contends the issue was addressed in June and denies any further incidents. The employer failed to respond to request for rebuttal. In the absence of further details from the employer, there is insufficient information to discredit the employee's statement. The employer has failed to support a finding of misconduct.

The employer did not present evidence at the hearing to establish that it responded to the adjudicator's August 31, 2007, request for additional information. At the hearing, the employer presented evidence regarding the delay between the incident and the separation. The employer failed to provide correct and complete information requested by the department during the fact-finding investigation and did not establish that it had good cause for such failure.

The employee provided the information requested by the department during its fact-finding investigation. The employee was not paid benefits due to any fault on his part. The department conducted an investigation and issued its decision based on available information. The employee was not paid benefits due to departmental error. Because the employer was at fault in the erroneous payment of benefits, and the employee was not at fault, the benefits remain charged to the employer's account but no overpayment is created. According, the employee is not required to repay the erroneously paid benefits.

The appeal tribunal therefore finds that in week 32 of 2007, the employee voluntarily terminated employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason constituting an exception to that section.

The appeal tribunal further finds that the employee was paid benefits in the amount of $2,080.00, 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 appeal tribunal further finds that the employer failed, without good cause, to provide correct and complete information requested by the department during the fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (g).

The appeal tribunal further finds that the employee was not at fault in the erroneous payment of benefits and, pursuant to Wis. Stat. § 108.04(13)(c), no overpayment is created.

(2) Delete the last two sentences of the ALJ's DECISION paragraph and insert therefor:

There is no overpayment as a result of this decision. Benefits erroneously paid to the employee remain charged to the employer's account.

(3) Delete the NOTE.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2007, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. There is no overpayment as a result of this decision. Benefits erroneously paid to the employee remain charged to the employer's account.

Dated and mailed March 12, 2008
edminsc . umd : 132 : 1  BR 319.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the portion of the appeal tribunal decision which found that he voluntarily terminated his employment and not for any reason that permits immediate benefit payment. The commission has reviewed the record and agrees with the ALJ's findings and conclusions. The employee was advised to contact the employer. The employee did not even write a letter until nine days after he received the employer's message. The employee could have written a letter sooner setting forth his inability to contact the employer otherwise and to discuss arrangements to meet. While the employee claims at the hearing that he did not know why the employer wanted to meet with him, it is clear by his August 17 letter that he knew that the employer was still investigating the issue of the demo application as he references it in his letter.

The employer argues in response to the petitions filed by the employee and department, that the appeal tribunal erred in finding that the employer failed, without good cause, to provide correct and complete information requested by the department during the fact-finding investigation. The employer asserts that it faxed 10 pages of documentation to the department on August 29, 2007. The hearing file contains the documentation the employer refers to, and based on the fact that the adjudicator was requesting "rebuttal and additional information" on August 31, the reasonable inference is that the adjudicator received and reviewed that information. The information provided consisted of a letter from TALX to the employer requesting information, a letter to the employee from the employer stating that it had closed its investigation and the employee was terminated, telephone records from May and June of 2007, and pages from the employer's disciplinary policy. Those documents did not provide the information the adjudicator requested in her August 31, 2007, message. There was no evidence presented at the hearing to establish that the employer did not receive the August 31, 2007, request for information, or to explain why it failed to respond to that request. The employer argues that, "If this documentation was sufficient for both the Department and the Tribunal to find the Claimant ineligible, then clearly the Employer provided sufficient separation information to the State in a timely manner." However, the employee was found eligible by the department's adjudicator. The finding that the employee was erroneously paid benefits resulted from the appeal tribunal's decision, which was based on information the employer failed to provide during the department's investigation.

The department has petitioned for commission review of the portion of the appeal tribunal decision that found the employee was overpaid benefits that must be repaid to the department. The commission agrees with the department that because the ALJ found that the employee was paid benefits because the employer failed to provide correct and complete information, and the employee was not found to be at fault, no overpayment can be created. The commission has therefore modified the appeal tribunal decision.

 

cc: Per Mar Security & Research Corp. (Green Bay, Wisconsin)


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