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

JOSEPH M FINN, Employee

COOK SPECIALTY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08607984MW


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 for two and a half years as a warehouse worker for the employer, a bakery supply distributor. His last day of work, and date of quit, was October 8, 2008 (week 41).

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

On May 21, 2007, the employee signed a new policy from the employer under which workers would have to reimburse the employer for any costs associated with shipping errors that the individual worker was personally responsible for. The employee did not object to the policy when it was implemented.

Over the course of the next year and a half the employee was required to pay a total of approximately $40 due to shipping errors made by him. Most of the dollar amounts were $5 or $6. Occasionally the employee would object to being charged for a specific error that he believed was not his fault but he did not object formally to the overall policy.

In approximately early September, 2008, the employee shipped two large products in error. He was charged $54 by the employer for the mistake. When he protested that he was being charged too much by the employer, he was told he could pay or quit. The employee made a partial payment, then quit without giving the employer a reason.

Wis. Stat. § 108.04(7)(a) provides that an employee who quits a job will have all of his or her benefit eligibility suspended until the employee meets specific requalification requirements. That suspension is imposed regardless of whether benefits will be paid by the employing unit that the employee quit or by another employer. The only exceptions are those stated in the law. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer means that the employee's resignation is caused by some act or omission by the employer which justifies the employee's decision to quit. It involves some fault on the employer's part and must be real and substantial. Hanmer v. DILHR, 92 Wis. 2d 90 (1979); Kessler v. Industrial Comm., 27 Wis. 2d 398 (1965); Bell v. Gardner Equipment Co., UI Dec. Hearing No. 07400152AP (LIRC May 24, 2007).

Wisconsin Statute § 103.455 makes it unlawful for an employer to make deductions from an employee's paycheck for faulty workmanship, unless the employee has previously authorized the employer to do so in writing, or other specific procedures have been followed, and the commission has held that deductions from an employee's paycheck for poor performance are in violation of Wis. Stat. § 103.455 and provide the employee with good cause to quit. Still v. H B Express (LIRC, June 4, 2002); Middour v. Affordable Homes of LaCrosse (LIRC, March 15, 1994).

In this case, the employer did not deduct the money for the mistake from the employee's check. Rather, the employer made continued employment contingent upon the employee paying the money to the employer in a separate transaction. However, the employee was not allowed any choice in the matter; the employer's actions were tantamount to deducting the money from the employee's paycheck. While the employee did not tell the employer that he was quitting because the employer was requiring him to repay the cost it incurred as a result of his error, he had complained in September and was told that he could either pay the money or quit. As such, there was nothing that would suggest that the employer was willing to resolve this matter in any manner short of having the employee paying for the entire mistake. The employer's policy was so harsh and so punitive to the employee that it gave rise to good cause attributable to the employer for quitting.

The commission, therefore, finds that in week 41 of 2008, the employee voluntarily terminated his work with the employer, and that his quitting was 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 41 of 2008, if otherwise qualified.

Dated and mailed March 12, 2009
finnjo . urr : 145 : 1 VL 1059.07

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ because it disagreed with the ALJ's credibility determination. The facts in this case were, for the most part, undisputed. The commission has reversed the ALJ's decision because the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


 

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