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


ANNETTE C TESKE, Employe

DIPLOMAT MOTEL, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 95605683MW


On September 21, 1995, the Department of Industry, Labor and Human Relations issued an initial determination in the above- captioned matter which held that in week 35 of 1995 the employe quit her employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On November 9, 1995, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

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 for the employer, a motel, for approximately three years as general manager. Her last day of work was August 26, 1995 (week 34).

The employer's motel was owned by the employe's brother and was located in Whitewater, WI. In May of 1995 the employe's brother told her that he had accepted an offer to sell the motel. He indicated that he was letting the employe know this so that she could find other work. The employe was told that the employer would be closing on the sale in October.

In July of 1995 the employe notified the employer that she was quitting and that her last day of work would be August 26. The employe indicated that her husband had found work in Milwaukee and that she would be relocating to Milwaukee as of that date.

At some point between May of 1995 and August 26, 1995, the sale of the motel fell through and the employer removed the property from the market. However, the employer did not notify the employe of this fact and the employe continued to believe that the motel was to be sold in October. The employe voluntarily terminated her work with the employer in week 34 of 1995.

The issue before the commission is whether the employe's quitting was for any reason permitting the immediate payment of benefits.

The appeal tribunal found that the employe's quitting was not with good cause attributable to the employer. The appeal tribunal reasoned that, given the relationship between the employe and the employer's owner, the employe should have verified the status of the sale of the motel prior to making arrangements to move. The appeal tribunal further concluded that the employe's decision to relocate under those circumstances was not caused by any action of the employer. The commission disagrees with the appeal tribunal's analysis, for the reasons set forth herein.

It is undisputed that the employer told the employe it was selling its business and that she should seek other work. The employe was entirely justified in relying on the employer's representations to that effect and had no obligation to take additional steps to verify the status of the sale, regardless of the fact that a familial relationship existed between the employe and employer. Indeed, because it was the employer who notified the employe that the business was to be sold, and because the employer was the party with access to continuing information pertaining to the sale, the onus was upon the employer to notify the employe that the sale would not be going through. No evidence was presented at the hearing to suggest that the employe had any intention of quitting her job prior to being told that the employer was selling the business, and there is no reason to believe that the employe would not have elected to remain employed had she been given that option. Consequently, the commission concludes that the employe's quitting was precipitated by the employer's actions in notifying her that it was selling the business and that she should look for other work, and that her quitting under these circumstances was with good cause attributable to the employer.

The commission therefore finds that in week 34 of 1995 the employe voluntarily terminated her work with good cause attributable to the employer, within the meaning of section 108.04 (7)(b), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1995, provided she is otherwise qualified.

Dated and mailed: January 19, 1996
teskean.urr : 164 : 5  VL 1005

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

NOTE: The commission's decision to reverse the appeal tribunal decision did not involve an assessment of the credibility of the witnesses in this case. The commission does not reverse any credibility determination made by the appeal tribunal but, for the reasons set forth in the body of the decision, the commission differs with the appeal tribunal as to the interpretation and application of the law under essentially the same set of facts as that found by the appeal tribunal.


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