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

RICHARD J JORGENSEN, Employee

FRANK'S FEED MILL INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400825AP


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 employee is eligible for benefits beginning in week 51 of 2010, if otherwise qualified.

Dated and mailed July 29, 2011
jorgeri . usd : 102 : 5 : VL 1005 : VL 1059.20 : VL 1059.204

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The owner, on behalf of the employer, appealed the adverse appeal tribunal decision and disputes that the employee had good cause for quitting. In his petition for commission review, the owner asserts that his unilateral decision to reduce the employee's rate of pay and hours was reasonable based upon the employee's alleged failure to perform his job duties as assigned. While the owner maintains that the employee had been previously reprimanded for such behavior, this statement is not supported by the record. During the hearing, the owner testified that the sole reason for the reduction was an incident which occurred on November 24, 2010. The owner further asserts in the petition for review that his desire to decrease the amount of overtime worked was a motivating factor in his decision to reduce the employee's hours. Again, this is not supported by the record.

The commission's rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the owner which are not supported by the record.

It was undisputed at the hearing that the employee's hourly rate was reduced from $17 per hour to $13 per hour and his hours were reduced from approximately 40 per week to 20 per week. This amounts to a 23.5 percent reduction in wages and a 50 percent reduction in hours. The evidence adduced at the hearing did not establish that the reduction in wages and hours was limited to a specific time period, and the commission is unable to conclude that it would not have been indefinite. The employee's job duties did not change despite the reduction in his compensation. Even if the reduction in wage and hours was warranted based upon blameworthy conduct on the employee's part, a reduction to the level in this case is highly punitive and inherently unreasonable and, as such, provided the employee with good cause to quit. See, e.g., Zoern v. Krist Oil Co. Inc., UI Dec. Hearing No. 03001555WU (LIRC Oct. 7, 2003); Butler v. Advantage Advertiser LLC, UI Dec. Hearing No. 02002243BO (LIRC July 5, 2002); Peterson v. Irish Hill Golf Course, UI Dec. Hearing No. 02200096LX (LIRC Nov. 6, 2002).



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uploaded 2011/09/13