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

CHARMAINE A ALSAGER, Employee

PIGGLY WIGGLY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003763MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner..."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order...

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition.

The administrative law judge's decision having been dated and mailed on September 26, 2008, the last day on which a timely petition for review could have been filed was October 17, 2008. The petition for review was filed on October 18, 2008.

On her reasons for late petition for commission review form, the employee explained that she faxed her appeal prior to midnight on October 17, 2008, and had no explanation as to why the fax was not date stamped until 12:21 a.m. on October 18, 2008. 21 minutes is not a significant amount of time, making the employee's assertion that she faxed her petition in a timely manner but that it was briefly delayed by technical, not human, error to be credible.

The commission therefore finds that the petition for commission review was not timely but that the employee has shown that the reason she failed to file the petition timely was beyond the employee's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

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 petition for review is not dismissed. The appeal tribunal decision is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2008, 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.

Dated and mailed December 23, 2008
alsagch . upr : 145 : 1  PC 731  VL 1039.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision arguing that she did not quit her job but was discharged by the employer when it failed to follow through on its promise to bring the employee up to full-time. At the hearing the employer indicated that it reduced the employee's hours because of business reasons, as it had additional workers during the summer since college students would come home and return to work for the employer.

The employee argued that even though she was moving during week 30, the employer could have scheduled her for additional hours during that week when she was available to work. While that is true, the employer presented testimony that established that the scheduled varied every week and the employer filled out the schedule in the summer time based on the people that were available.

The employee believes that the employer was retaliating against her because she was filing for unemployment benefits. The employee was unhappy because the employer asked her about collecting benefits. However, the employee did not establish that the employer reduced her hours in response to her claim for benefits, or that it created such a hostile work environment that she had good cause attributable to the employer for quitting.

The employee has indicated that she quit her employment with the employer because of economic unfeasibility which is an exception to the quit disqualification for a worker who terminates his or her part-time work consisting of not more than 30 hours per week if the employee is otherwise eligible to receive benefits because of the loss of the employee's full-time employment and the loss of the full-time employment makes it economically unfeasible for the employee to continue the part-time work.

Wis. Admin. Code § DWD 132.03(3)(b) provides as follows:

To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work.

Thus, while the employee states that she could not meet more than her basic living expenses when she was working part-time and collecting benefits this does not automatically establish that she quit within this exception. Basic living expenses are not part of the formula that determines whether the employee quit because the loss of her full-time job made it economically unfeasible for her to continue the part-time work. The week before the employee quit she was scheduled for 16.75 hours. The employee earned $12 per hour so she would have earned $201. The employee's weekly benefit rate is $311, and if she earned $201 in wages she would be eligible for benefits in the amount of $196.43. The employee stated she had gasoline expenses of $33.60 per week. The employee's wages plus benefits she would be entitled to would be $397.43, which after subtracting her travel expenses would be $363.83, which is more than her full weekly benefit rate of $311 for that week. Furthermore, the fact that she did not quit until 6 months after her full-time employment ended demonstrates that it was not economically unfeasible for her to continue her part-time job.

 


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


uploaded 2009/01/26