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

ETTA M STANKE, Employee

STAT TEMPORARY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08200804EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits will be reduced by including in the computation of benefits payable the amount of $584.00 as wages the employee would have earned had the employee performed all of the available work. The employee is not eligible for a weekly benefit payment in week 10 of 2008.

Dated and mailed September 18, 2008
stanket . usd : 135 : 1 AA 110

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The issue before the commission is whether the employee was with due notice called on by her current employing unit to report for work actually available during week 10 of 2008 and whether the employee was available for that work within the meaning of Wis. Stat. § 108.04(1)(a). The employee refused the available work on March 5 and March 6, 2008 because of dentist appointments. At the hearing the employee also complained that the distance to the nursing facility was too far from her home.

Generally, however, no inquiry is made as to why an employee does not perform the work available because the reason is not relevant. Nancy L. Whitehead vs. LIRC and Midwestern Performance Assessment Center, Inc., Case Nos. 00-CV-280 and 281 (Washington County Circuit Court, December 6, 2000). In Joyann Benz v. Johnson School Bus Service Inc., UI Hearing Dec. No. 01606441WB (LIRC October 22, 2001), the commission held that the law does not inquire into the reason why the employee failed to perform the available work only whether the employee failed to perform the available work. Therefore, the employee's given reason to the employer (dentist appointments) and her subsequent reason (distance) are not relevant to this specific inquiry which is whether the employee failed to perform the available work for her current employment unit.

Here, the employee was with due notice called on by her current employing unit to report for work actually available within the week and was unavailable for some or all of such available work within the meaning of Wis. Stat. § 108.04(1)(a). Therefore, the employee is not eligible for benefits in week 10 of 2008.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/09/26