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


TAMMY K GILKAY, Employe

SERVICEMASTER OF STEVENS POINT, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95002242WR


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations issued a decision in this matter which allowed the employe benefits. A timely petition for review was filed by the employer.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two years, last providing services as an operation's manager for the employer, a residential and commercial cleaning service. Her last day of work was April 5, 1995 (week 14), after which she voluntarily terminated her employment.

During the weekend of March 26, 1995, the employe's brother and mother were both hospitalized. On Monday her brother passed away and the employe requested to be off work until April 5. When she returned to work she found a number of notes left by the employer's president criticizing certain aspects of her job performance. She was going to respond to these notes but when the first opportunity to speak to the employer's president occurred he asked her how she liked her vacation. Because of the emotional circumstances surrounding her brother's death, she decided she could no longer continue to work for the employer.

The issue to be decided is whether the employe'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 employe'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)).

Although the employer's comment to the employe was inappropriate and hurtful it will not support a finding of good cause attributable to the employer for quitting her job. While an employe is not required to exhaust alternatives, in most cases she is expected to at least pursue some alternatives to resolve an employment issue short of quitting. It was her choice to quit her job without confronting the employer about his insensitive comment or in any way attempting to resolve her hurt feelings. While perhaps an understandable reaction, the commission cannot conclude that the employe was justified in becoming unemployed because the employer had made an insensitive remark.

The commission therefore finds that in week 14 of 1995, the employe terminated her work with the employing unit, within the meaning of section 108.04 (7)(a) of the Statutes, and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $3,230 for weeks 14 through 18 and 24 through 37 of 1995 for which the employe was not eligible and to which she was not entitled, within the meaning of section 108.03 (1) of the Statutes and she is required to repay such amount to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 14 of 1995, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay the sum of $3,230 to the Unemployment Reserve Fund.

Dated and mailed September 28, 1995
gilkata.urr : 164 : 5 VL 1005

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge prior to reversing his decision. It makes its decision based not on a differing assessment of the witnesses credibility but solely as a matter of law.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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