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

KATHLEEN A PONZI, Employe

GRAND MILWAUKEE HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604659MW

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 six months as a waitress for the employer, a hotel. Her last day of work was May 1, 1998 (week 18).

The employe quit because she could not support herself based on the limited assignment to the evening shift. The issue which must be resolved is whether the employe quit for any reason which would allow the immediate payment of benefits under the statutes.

At the time of her hire, the employer assured her that she would be provided four evening shifts and two lunch shifts for her working schedule. Thereafter, she worked close to the schedule that was described for her at the time of hire. Later, after the employer lost a waitress on the lunch shift, she was assigned to work more lunch shifts and fewer evening shifts. At the end of her employment, she was working only one or two evening shifts per week which she did not consider sufficient to provide her with enough financial support for her living expenses. Accordingly, she quit her employment even though she had no other job available.

In Farmers Mill of Athens, Inc. v. ILHR Dept., 97 Wis.2d 576 (Ct. App. 1980), the court held that a unilateral change in the conditions of employment on the part of the employer, which resulted in a signficant pay reduction to the employe, because of a change in commuting distance which necessitated additional costs was significant enough to constitute good cause attributable to the employer for quitting.

The employe made significantly more in the evening than she made at lunch. She had been assured, at the time she began her employment, that she would work mainly evening shifts. The employer's decision to transfer her to predominantly lunch shifts represented a change in conditions of her employment and this change resulted in a substantial decrease in wages which resulted in financial hardship. The employe discussed the situation with the employer prior to quitting, however, the employer could not guarantee that she would be getting more evening shifts. The employer certainly has the right to schedule its workers where they are needed and the employer's changing the employe's shift to mainly lunch was due to the loss of a waitress and not designed to induce the employe to quit. However, the employer's changing of this condition of employment resulted in a significant reduction in wages to the employe, and therefore amounted to good cause attributable to the employer for quitting.

The commission therefore finds that in week 18 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 beginning in week 18 of 1998, if she is otherwise qualified. The employe is not required to repay the sum of $1,372 to the Unemployment Reserve Fund.

Dated and mailed: November 10, 1998
ponzika.urr : 145 : 1 VL 1005 VL 1059.204

/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. It was not disputed that the employe had been told at hire that she would work mainly evening shifts, and that she was switched to mainly lunch shifts because another worker quit. In addition, there was no dispute that workers made considerably more during evening shifts than lunch shifts. In addition, there was no dispute that the employe asked the employer repeatedly to honor its agreement that she would have mainly evening shifts. The commission reached a different legal conclusion than the ALJ, after considering the record made and the facts found by the ALJ.

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