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


VIANN M JOHNSON, Employe

CLIMATEC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004267MD


On October 22, 1998, the Department of Workforce Development issued an amended initial determination which held that the employe was given due notice of dismissal or termination pay for week 39 of 1998. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on November 23, 1998 in Madison, Wisconsin before a department administrative law judge. On November 25, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The department petitioned for commission review of the 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during approximately three months as the human resource manager for a non-subject Arizona employer. Her last day of work was Friday, September 18, 1998 (week 38). The issue to be decided is whether the employe received dismissal or termination pay which should be treated as wages for unemployment insurance purposes for the week(s) in which the employe claimed unemployment insurance. The commission concludes that the employe did receive dismissal pay for week 39 of 1998, and due notice thereof, and so reverses the appeal tribunal decision. The commission also concludes that there was no error by either the employe or department adjudicatory personnel. There thus is no basis for waiver of recovery of the resulting $290 unemployment insurance overpayment.

On September 18, 1998, the employe's supervisor advised her that a decision had been made that the employer did not need a person skilled in the human resource field. She was told that her employment was being terminated. She was given a paycheck that contained her net pay for a two week period, although the end of the pay period was not until September 25, 1998. The only notation on the check was the date: "9/25/98." She did not ask the employer for an explanation for the additional amount in her last paycheck, but rather assumed that the additional amount was to pay her through September 25, 1998. The employe's supervisor told the employe she (the employe) was being paid through next Friday (September 25), but the employe did not hear this remark her supervisor. When the employe filed a claim for unemployment insurance for week 39, she indicated that she had not received dismissal pay for that week.

Wisconsin statute § 108.05 (5) provides as follows:

(5) TERMINATION PAY. An employe's dismissal or termination pay shall, for purposes of eligibility for benefits for partial unemployment under sub. (3), be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employe for that week, and the employe has had due notice thereof, and only if such pay, until fully assigned, is allocated:

(a) At not less than the employe's approximate full weekly wage rate; or

(b) Pursuant to any other reasonable basis of allocation, including any basis commonly used in computing the termination pay of employes.

Due notice for unemployment insurance purposes is not necessarily actual notice. Rather, it can simply be notice reasonably calculated to inform the individual of the matters noticed. In this case, the employe received due notice of the allocation of dismissal pay to week 39 of 1998. The commission agrees with the administrative law judge that the notations on the check itself were insufficient to constitute due notice of the allocation. The employe's supervisor expressly told the employe, however, that she was being paid through September 25 (the Friday of week 39). This must constitute notice reasonably calculated to inform the employe of the allocation.

The commission therefore finds that the employe received dismissal or termination pay in the amount of $769.23 for week 39 of 1998, that was definitely allocated, payable or fully assigned to that week, and that the employe received due notice of that assignment or allocation, within the meaning of Wis. Stat. § 108.05 (5). The commission also finds that the employe received unemployment insurance benefits for week 39 of 1998, in the amount of $290, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), yet the overpayment also was not the result departmental error. See Wis. Stat. § 108.22 (8)(c)2. This case presents the anomaly of due notice having been given to the employe but the employe still not having been at fault for failure to report that notice to the department. Since due notice is different from actual notice, due notice can occur, as it did here, without an employe receiving actual notice of the matter noticed. When that happens, though, the employe can hardly be faulted for not reporting the matter to the department. For this reason, the commission concludes that the employe was not at fault with regard to the information she provided the department during investigation of her unemployment insurance claim. By the same token, the department cannot be considered to have been at fault for initially paying the employe's week 39 unemployment insurance claim. This is because the department did not know the employe had received due notice of the dismissal pay allocation, until the employer so informed it after the employe received unemployment insurance for week 39. For these reasons, the commission concludes that neither the employe nor the department were at fault for the overpayment which occurred in this case.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for unemployment insurance in week 39 of 1998. She must repay $290 to the Unemployment Reserve Fund.

Dated and mailed May 6, 1999
johnsvi.urr : 105 : 3  UW 910

/s/ David B. Falstad, Chairman

/s/ 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, in order to determine his assessment of the credibility of the employer's testimony. He found the employer's testimony to be credible, as does the commission. The commission's reversal of the appeal tribunal decision is as a matter of law; due notice, as indicated above, does not require actual notice. The commission notes, finally, that had the employe received unemployment insurance as a result of the issuance of the appeal tribunal decision, those benefits would have been paid due to departmental error.

cc: GREGORY FRIGO
DIRECTOR, BUREAU OF LEGAL AFFAIRS


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