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

ANTOINETTE M PUM, Employee

SHAWS KEEPSAKE DIAMOND CE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08601656MW


On December 7, 2007 the department issued an initial determination finding the employee ineligible for benefits because she quit but not for a reason which would allow the payment of benefits. The initial determination was sent to the employee at her address of record and the employer's address was listed incorrectly. The employer's representative, TALX UCM Services was not sent a copy of the initial determination. The employee timely appealed and a hearing notice was issued on January 3, 2008 scheduling the hearing for January 10, 2008. The employer's address was listed incorrectly as "675 Ghent Rd.", Akron, Ohio. The employer's representative, TALX UCM Services did not receive a copy of the hearing notice. The employee appeared for the hearing scheduled on January 10, 2008 and testified regarding her employment separation. On January 14, 2008, ALJ Howard Lustig issued an appeal tribunal decision reversing the department's determination, finding that the employee quit with good cause attributable to the employer and allowed benefits.

On January 17, 2008, the employer's representative sent the department a letter stating that it did not participate in the January 10, 2008 hearing because it was never notified of the hearing. The employer's representative indicated that it did provide the employer's statement to a department deputy on December 5, 2007 but it never received a copy of the department's initial determination or the hearing notice. On February 11, 2008, ALJ Lustig set aside his appeal tribunal decision and ordered that a hearing on the employer's failure to appear be scheduled. At that hearing, the employer testified that the department listed the employer's address incorrectly as "675 Ghent Rd" and neither the employer nor its representative received notice of the January 10, 2008 hearing. The ALJ who conduct this hearing found that the employer's failure was with good cause within the meaning of Wis. Stat. § 108.09(4) and ordered a hearing on the merits.

A hearing on the merits was scheduled and on March 17, 2008, both the employee and employer appeared before ALJ Jack Rakowski. ALJ Rakowski issued a decision in this matter on March 19, 2008. 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 agrees with the decision of the ALJ, and adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

Under the Findings of Fact and Conclusions of Law, after the final paragraph in the appeal tribunal decision, add the following paragraphs:

It is further found that the employee was paid benefits in the amount of $5,325 for weeks 46 through 52 of 2007 and weeks 1 through 8 of 2008, 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) department error is defined as an error made by the department when computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or misinformation provided to a claimant by the department, on which the claimant relied.

Here, the department was aware that the employer was represented by TALX UCM Services when its representative provided the employer's statement on December 5, 2007. Despite this the department never mailed the employer's representative a copy of the initial determination or the hearing notice issued on January 3, 2008. Furthermore, the department incorrectly listed the employer's address as "675 Ghent Rd," and the employer failed to receive notice of the hearing at its headquarters in Akron, Ohio. For these reasons, departmental error exists within the meaning of the law. Additionally, there is no employer fault or employee fault within the meaning of Wis. Stat. § 108.04(13)(f). Accordingly, recovery of the overpaid benefits, for the weeks noted above, is waived pursuant to Wis. Stat. § 108.22(8)(c).


DECISION

The appeal tribunal decision is modified, and as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 41 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. The employee is not required to repay the sum of $5,325 to the Unemployment Reserve Fund because the overpaid benefits are waived within the meaning of Wis. Stat. § 108.22(8)(c).

Dated and mailed May 23, 2008
puman2.umd: 135 : 8

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The employee contends that she did not quit but was forced to transfer to another store location that did not offer as many hours or opportunities to make sales. The commission is satisfied however that both the employer and employee agreed to this transfer because the employee was unhappy with her current position at another store location. The employee quit to find a better job and not because of any action or inaction on the employer's part. Therefore, while the employee may have had a personally valid reason for quitting her employment, her reasons do not establish any exception to the quit disqualification found at Wis. Stat. § 108.04(7)(a).


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