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


KATHLEEN M SICKLER, Employe

ST FRANCIS HOME INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200933EC


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about seven years as a program technician for the employer, a nursing home business. Her last day of work was June 4, 1998 (week 23).

The first issue to be decided in this case is whether the employe voluntarily terminated her employment or was discharged by the employer. A secondary issue involves her eligibility for benefits in view of the nature of her separation from work.

The employe and other program technicians were notified in December of 1997, and at subsequent meetings, that they must obtain certified nursing assistant certification in order to continue their employment with the employer. The employe did not obtain the certification and she was notified in May that her last day of work would be June 4, 1998 (week 23).

The employer was requiring the certification because the state had questioned its certification, given some of the tasks which the program technicians performed. The program technicians' usual duties consisted of assisting residents with independent living skills, behavior development and providing activities and stimulation. As certified nursing assistants, their job duties would have been revised to include various tasks related to direct patient care. The employe did not attend schooling because she thought as a certified nursing assistant her seniority and rate of pay would be affected, and she did not want to perform various tasks that certified nursing assistants performed.

The employe had a medical restriction to not work more than eight hours per day. The employe would not have been expected to work or attend school combined for more than eight hours per day. She would have been paid for attending school. It had not been definitely decided, but her rate of pay would probably not have changed.

It was the employe's position that she was discharged by the employer. However, she had been made aware that she would have been able to continue her employment if she obtained the CNA certification. Her failure to do so was inconsistent with the continuation of the employment relationship. For unemployment compensation purposes, the employe voluntarily terminated her employment.

The second issue to be decided in this case is whether the employe's quitting was for any reason which would allow the immediate payment of unemployment benefits.

The courts have held that to constitute "good cause" for quitting, the employe's reason must relate to some real, substantial and unreasonable act on the part of the employer. Woracheck v. Koch Brothers, Inc. & Ind. Comm., 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). Furthermore, it must be a reason that would justify her in becoming unemployed rather than continue working. Hur v. Radio Shack Tandy Corp. & DILHR, Dane County Circuit Court, Case No. 153-082, June 6, 1977.

The employe was required to obtain certification as a CNA. She would have been required to perform work as a CNA, which would have included different duties than that of a program technician. Thus, the employer unilaterally changed the conditions of the employe's employment. Because there was no wage mentioned to the employe, it cannot be found that her wage would have not have been substantially less favorable to her than that prevailing for similar work. The employer's actions in expecting the employe to obtain a certification, in order to perform additional duties that she did not wish to perform, and without any indication of what her wage would have been, amounted to good cause attributable to the employer for quitting.

The commission therefore finds that in week 23 of 1998, the employe terminated her work 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 employe is eligible for benefits as of week 23 of 1998, if she is otherwise qualified. She is not required to repay the sum of $33 to the Unemployment Reserve Fund.

Dated and mailed: November 10, 1998
sicklka.urr : 145 : 1 VL 1054.01  VL 1005  VL 1080.268

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ but reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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