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


JAY J WESTON, Employe

COMPUTER BUSINESS SERVICES OF WISCONSIN INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97002688JV


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, the employe is ineligible for benefits beginning in week 14 of 1997, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $564 to the Unemployment Reserve Fund. Benefits paid to the employe through week 19 of 1997, will remain charged to the employer's UC reserve account due to its failure to timely return a required report, UCB-16, as to the employe's eligibility.

Dated and mailed July 29, 1997
westoja.usd : 132 : 5   BR 335.04

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner



MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he voluntarily terminated his employment and not for any reason permitting immediate benefit payment. The employe states in his petition that the FINDINGS OF FACT AND CONCLUSIONS OF LAW contained in the appeal tribunal decision are in error. The employe further states that he was not reporting the circumstances surrounding his separation are full. This does not constitute error by the administrative law judge in making his FINDINGS OF FACT AND CONCLUSIONS OF LAW. The employe testified at the hearing that he was informed that if he could not put in 40 hours a week the client no longer needed his services. It was the employe's decision whether he could or would work a 40-hour workweek. It was up to the employe to inform the employer that he would be able to arrange his personal circumstances to allow him to perform the work for which he was scheduled. He did not do so. Instead, he did not again report to work for the client. It was the employe's ultimate decision that he could not meet the employer's client's reasonable work requirement that he work a 40-hour week. The commission therefore agrees with the appeal tribunal that the employe made the ultimate decision not to continue performing services for the employer's client.

The employe also states that his employer was in the process of negotiating another consulting contract for him with a client one week after his separation. This allegation, however, does not change the nature of the separation. The employer had continuing work available to the employe and the employe made the decision not to continue in that work. The commission agrees with the appeal tribunal that the employe took the chance that the employer would not have work immediately available to him. The commission cannot agree with the employe that the facts of this case show a temporary layoff by the employer. The employer did not lay the employe off, the employe due to his personal circumstances was unwilling or unable to fulfill the requirements of the position in which he was placed.

The employe also states that he believes Wis. Stat. § 108.04 (7)(o) applies in this case. It does not. That statutory provision does not apply if the other work is in self employment. Indeed, under Wis. Stat. § 108.04 (1)(e) an employe is not eligible for unemployment benefits if the individual has not made a bona fide search for employment. The purpose of that provision is to ensure that individuals who are engaged in self-employment are actively seeking other employment. It is inconsistent to find that such self-employment can then be a basis for allowing benefits to a worker who has terminated other employment.

Finally, the employe states that under Wis. Stat. § 108.22 (8)(c)1.b. the department shall waive the recovery of benefits erroneously paid if the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f) or a claimant's misrepresentation or false statement. The employe states in his petition that the department has not determined that a false statement or a misrepresentation was made by him, and therefore, according to Wis. Stat. § 108.04 (13)(f), if benefits were erroneously paid because the employer failed to file a required report the employer is at fault. However, Wis. Stat. § 108.22 (8)(c) contains two requirements for the waiver of the recovery of benefits. Under that statutory section, benefits shall be waived if the overpayment was the result of a departmental error, whether or not the employer is also at fault under Wis. Stat. § 108.04 (13)(f), and the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), or because of the employe's false statement or misrepresentation. Thus, the fact that the employer did not timely submit a report required by the department cannot alone justify waiver. In order to waive recovery of overpaid benefits, there must be a showing that the department was at fault and that the employe was not at fault. There is no showing of departmental error in this case. However, because the employer did not file a required report in a timely fashion, the benefits erroneously paid to the employe, which must be repaid to the department by the employe, will remain charged to the employer's account.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


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