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


BONNIE L GAWORSKI, Employe

WILLIAM H MYERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605930MW


On September 1, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit her employment but not with good cause attributable to the employer. The employe filed a timely request for hearing on the adverse determination, and hearing was held on September 22, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On October 5, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked more than 25 years as the office manager for the employer, an individual with an optometry practice. The employe quit her employment on August 13, 1998 (week 33), and the issue is whether her quit was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04 (7)(b). The commission concludes that it was, and so reverses the appeal tribunal decision.

Between eight and ten times toward the end of the employe's employment, the employer's telephones were shut off for the employer's nonpayment of the telephone bill. The employe would have to leave the office, go to her daughter's home and telephone the employer. The employer would tell the employe to "get [her] ass back to work," that he would take care of it.

The employer would also give the employe her paycheck but tell her not to deposit or cash it at that time, because the money was not there. Such practice is contrary to law, and the commission has held that a pattern by an employer of issuing checks for which there are insufficient funds gives an employe good cause to quit his or her employment. See Harycki v. Wiedmeyer Service Center, Inc., Hearing No. 91-603649WB (LIRC, 8-26-91).

The incident precipitating the employe's quit was a remark by the employer on her last day of work. He indicated that a certain patient was glad she would not have deal with the employe any more, because the employe could not even get the patient the frame the patient wanted. The reason the employe could not get the frame, however, was that the employer was behind on the provider account in question and the provider would not send any more product to the employer (until the employer became current on his account). The employe subsequently told the employer that it would be her last day. The employer then approached the employe and swore at her, following which the employe left the work site.

Generally, an employe who voluntarily terminates his or her employment is ineligible for unemployment insurance until he or she meets the requalification requirements of Wis. Stat. § 108.04 (7)(a). An exception is (7)(b), which allows immediate unemployment insurance eligibility for claimants who quit their employment with good cause attributable to the employer. "Good cause" for quitting requires a real, substantial, and unreasonable act or acts by the employer. Worachek v. Koch Brothers, Inc., Circuit Court, Case No. 104-461, June 2, 1961. It must involve some fault on the part of the employer. Kessler v. Ind. Comm., 27 Wis. 2d 398 (1965). It must be a reason which would justify an employe in becoming unemployed rather than in continuing working. Hur v. Radio Shack Tandy Corp., Dane County Circuit Court, Case No. 153-082, June 6, 1977. The employer's conduct meets this standard. First, it was inappropriate for the employer to swear at the employe simply because the employe properly reported to the employer that the telephone company had shut off the employer's telephone service. Second, it was both inappropriate and illegal for the employer to give paychecks to the employe which the employer did not have sufficient funds to cover. Third, the employer allowed a patient to blame the employe for a five-month delay in the ordering of a pair of glasses.

The commission therefore finds that, in week 33 of 1998, the employe voluntarily terminated her work with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04 (7)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed: February 17, 1999
gaworbo.urr : 105 : 3   VL 1059.07 VL 1080.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge did not believe the employer's asking the employe to delay cashing of her paychecks was a significant problem for the employe, that the employe did not emphasize that matter in her testimony. The employe testified, however, as to several aspects of the employment to which she objected and which, overall, led to her quitting of the employment. The commission cannot conclude that the employe's lack of emphasis on the matter of the paychecks means that that was not a reason she quit the employment. The administrative law judge also reasoned, in his decision, that it was not established that the employer ever requested or induced her to undertake illegal activity on the employer's behalf or to misrepresent his ability to pay creditors. The point is not that the employer specifically made such a request of the employe, though, but rather that the employer placed the employe in such a position that the employe essentially had little choice but to do just that. For these reasons, and those stated in the body of the decision itself, the commission concludes that the employe did have good cause attributable to the employer for her quit of employment. 

cc: 
ATTORNEY JOHN J LASKOWSKI
ORTH & LASKOWSKI SC


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