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


JAY A BUSSE, Employe

ADVANCE AMERICA CASH ADVANCE CENTERS OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99601060MW


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed May 27, 1999
busseja.usd : 178 : 6  VL 1080.22

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe did not have good cause to quit his job because his security concerns were unwarranted. In support of this contention, the employer includes extensive information concerning its national organization, its safety record both nationally and in Milwaukee, and the security measures it takes to protect its employes. It includes correspondence from the employe and a brochure. It concludes that the employe's putative concerns about safety were not the actual motive for his quitting his employment.

The commission is constrained by administrative rule to limit its review solely to the record created at the hearing. Matters offered for the first time in the petition must be disregarded by the commission and can form no part in the commission's decision. The employer's witness at the hearing offered no evidence to support the employer's contentions that the safety risk to the employe in going to cash was negligible. She testified that there was always a risk of being robbed and the employe should simply cooperate. Moreover, the employer's witness was quite frank that no further safety measures were offered to the employe when he expressed his safety concerns and she made no effort to reassure the employe about his safety. The employer's unwillingness to discuss much less address the employe's concerns amounted to a real, substantial and unreasonable act sufficient to justify his quitting. Therefore, the commission affirms the appeal tribunal decision that the employe's quitting was with good cause.

 

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Based on the testimony at the hearing, I do not believe that the employe has shown that the store he was working in was a major safety risk. Everyone agreed it was a good neighborhood. The business was open 9 a.m. - 6 p.m. on weekdays and 9 a.m. - 1 p.m. on Saturday. The store had not been robbed in the past. The employe's co-worker testified "In regard to why I think it could be robbed then, because there would be money there. I had no incidents where my security was threatened during the time I worked there."

I do not believe the fact that the employer's procedure manual tells employes what to do in case of robbery establishes that this store is more dangerous than a bank or a convenience store. The employe believed he needed bullet proof glass. If the store had been in a high crime area I would see this case differently. It was not in a high crime area and he was working hours that would not add to the risk of being robbed. If he had been working late hours where he might be alone that is also another question.

The employe called the director of operations to discuss his safety concerns. "Around 11:30 I gave her a call and asked her if she was going to come in. She said it might be another day or so." The director testified "I was on my way to a different store. The employe called me and said this is the last straw. Are you going to come down here to talk to me? At the time I had something else to do so I told him no. He said I plan to leave the keys on the desk with Doug. I asked him was he quitting. He said yes. I said I accept and we hung up."

The employer did not offer an accommodation because the employer believed that the employe would not consider anything but bullet proof glass. The employe was not willing to wait for another time to discuss his safety concerns.

The store had money up to $2,000 a day prior to going to a cash store and it allowed a maximum of $3,000 after the change. This increase in cash did not warrant putting in bullet proof glass in this location.

For these reasons, I do not believe that the employe quit with good cause attributable to the employer. I would find that the employe quit not within any exception that would allow for the immediate payment of unemployment benefits.


Pamela I. Anderson, Commissioner

 

cc: ADVANCE AMERICA CASH ADVANCE CENTERS


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