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

JENNIFER A DONAHUE, Employee

DEMMITH MULLIGANS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401450AP


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about one and one-half years as a cook, bartender and waitress for the employer, a sport's bar and grill. Her last day of work was on April 15, 2008 (week 16).

The employer's owners went on vacation in another state. The owners' daughters were left in charge. The daughters are 17 years old and 15 years old. One of the owners told the employee that on the evening of April 15 she was to work as the bartender and the daughters would serve food. The owners did not give the employee a phone number where they could be reached if necessary.

On April 13, the employee worked as the cook. On occasion, she observed one of the daughters make and serve alcoholic drinks. She did not contact the owners.

On the evening of April 15, the employee returned to the bar and grill to bartend. She observed the 17-year-old making alcoholic drinks. The employee talked with the 15-year-old and expressed her concerns regarding the daughters making and serving the drinks. When the employee asked the 15-year-old to call her parents, she shrugged her shoulders and left. Shortly thereafter, the 17-year-old asked the employee how to make a martini. The employee stated that she could not do this anymore and left.

That evening, the owners were contacted and they arranged to have an owner of another business come to their establishment to bartend. In addition, because the owners thought that the employee had quit her employment, they arranged to open the business later in the day on April 16.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The employee quit after she observed the owners' children serving alcohol and had no independent recourse to notify the employer or prevent them from continuing to do so. The employer was at fault for leaving minors in charge of an establishment which served alcohol. The employer denied that it intended for those minors to serve alcohol, but admitted that it made no provision for a licensed adult to serve on Sunday afternoon. The employer put the employee in an unreasonable position and left her no way to independently contact it when problems later arose. The commission concludes that the employee had good cause to quit her employment due to the employer's actions in leaving its minor children in charge of the bar.

The commission therefore finds that in week 16 of 2008, the employee terminated work with the employer 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 employee is eligible for benefits beginning in week 16 of 2008, if she is otherwise qualified.

Dated and mailed October 31, 2008
donahje . urr : 178 : 9 VL 1005.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

MEMORANDUM OPINION

The commission does not base its decision on any differing assessment of witness credibility and did not consult with the ALJ prior to reversing her decision. The commission accepts the findings of the ALJ but reaches a different conclusion when applying the law to those facts.

 


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