STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DWIGHT V GUSTAFSON, Employe
MINNESOTA BEST MAID COOKIE CO INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201596NR
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 the applicable law, records and evidence in this case, and after consultation with the administrative law judge (ALJ) regarding matters of credibility, the commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked approximately eight years as a driver and warehouse worker for the employer, a food product manufacturer. The employe's last day of work was February 16, 1998 (week 8), when the employe voluntarily terminated his employment.
The employer had relocated its business and after the move, the employe's workload increased. The employe began to routinely work between 50 to 65 hours per week. On numerous occasions, the employe complained to his supervisor about the number of hours that he was working. The employe was told that additional workers would be hired. When it became apparent that additional workers had not been hired, the employe quit. The employe was "putting in so many hours" that he testified was not able to do his job "safely or right." The employe dealt with these long hours over a long period of time and his decision to quit was not a hasty decision since he had personally inconvenienced himself by moving from Minnesota to Wisconsin when the employer relocated its business. As the employe explained, he did not move "from Minnesota to quit," as he had planned to stay with the employer until he retired.
The issue for review is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. Generally, an employe who quits is ineligible for benefits until he or she requalifies under Wis. Stat. § 108.04(7)(a). However, an employe who quits with "good cause attributable to his or her employer" is eligible for benefits despite quitting. See Wis. Stat. § 108.04(7)(b). The Supreme Court of Wisconsin has defined "good cause attributable to an employer" to mean some act or omission that justifies the employe's decision to quit. It must involve some fault on the part of the employer and must be "real and substantial." Nottelson vs. ILHR Dept. 94 Wis. 2d 106, 120 (1980). The commission and the courts have also observed that the reason an employe quits must be one that justifies his decision to become unemployed rather than to continue working. Circuit court decisions also provide authority for the proposition that when determining whether an employe has good cause attributable, the commission must determine whether the employe's decision to quit was a reasonable reaction by the employe to some act on the part of the employer. In making that determination, the courts stress that the "good cause" relates to the action of the employe, rather than the purpose of the employer for the action which caused the employe to quit. Stetz vs. DILHR, etc., Dane County Circuit Court Case No. 136-215, February 13, 1973.
The employe quit for several reasons. The employe quit because he was putting in so many hours he was not able to do his job safely or right. The employe also quit when he realized, after numerous attempts to rectify the situation, that the employer was not going to hire additional workers, to relieve the employe's excessive workload. The commission notes that the employer was not present at the hearing to refute or challenge the employe's description of his working conditions.
The commission is satisfied that the employe has established that his quitting was with ood cause attributable to the employer based on the employer's failure to address the employe's legitimate concerns regarding his excessive workload, overtime and safety concerns. The employe's decision to quit under these circumstances was a reasonable reaction by the employe to the employer's failure to respond to the excessive working conditions and hours the employe was expected to routinely work.
The commission therefore finds that in week 8 of 1998, the employe terminated his work with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b), and accordingly is eligible for benefits, if he is otherwise qualified.
DECISION
The appeal tribunal decision is reversed. Beginning in week 8 of 1998, the employe is eligible for benefits, if he is otherwise qualified.
Dated and mailed: February 22, 1999
gustadw.urr : 135 : 7 VL 1080.22 VL 1080.03
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred with the ALJ as to her credibility assessment of the employe. The commission does not disagree with any credibility assessment made by the ALJ but reaches a different legal conclusion when applying the law to the facts at hand. Based upon the record, the commission finds that the employe quit with good cause attributable to the employer given the employer's failure to respond to the employe's excessive workload, overtime, and safety concerns. The commission notes that the results of this case may have been different had the employer appeared at the hearing to refute or challenge the employe's testimony.
Pamela I. Anderson, Commissioner (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe did not have good cause attributable to the employer to quit. I disagree with the majority that safety was a major reason in the employe's quitting. The employe told the department in Exhibit 1 that he did have some help in his work from the production line but it wasn't much help.
The employe said he could not take time off from work but he never indicated that he ever asked for time off from work and was denied time off. He was not ever told that overtime was mandatory. He indicated that if he took time off, the job didn't get done so the work piled up.
The employer never told him that they were not going to hire additional help. They told him "we'll have to do something about this some time."
The employe did not immediately file for unemployment immediately after he quit. He helped his mother move into a nursing home. His dad moved. He had a brother who died. He worked on a house he owned in Minneapolis so he could sell it. He never asked the employer for a leave of absence to deal with these problems.
For these reasons, I would affirm the administrative law judge's decision.
Pamela I. Anderson, Commissioner
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