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


DONOVAN R HARJO, Employe

PANORAMIC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96005676JV


On November 19, 1996, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The employe timely requested a hearing on the adverse initial determination, and hearing was held on January 9, 1997, before a department administrative law judge in Janesville, Wisconsin. On January 13, 1997, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. The Department of Workforce Development timely petitioned for commission review of the adverse appeal tribunal decision and, on March 28, 1997, the commission issued a decision reversing the January 13, 1997 appeal tribunal decision. Pursuant to sec. 108.09 (6)(c), Stats., the commission sets aside its March 28, 1997 decision on the ground of mistake.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two weeks as a part-time box maker for the named employer in this case. His last day of work was October 8, 1996. While working for the employer weekdays, from 6:00 a.m. to 10:00 a.m., he was also working full time for an employer for whom he had worked for 5 years. His hours were from 5:00 p.m. to 3:30 a.m. He also was working part time for yet a third employer, from 10:30 a.m. to 1:00 p.m. He was attempting to sleep as he could between jobs. On October 10, 1996 (week 41), after several absences from work with the employer due to oversleeping from extreme fatigue, he decided to quit his job because he could not meet the demands of three jobs. He telephoned the employer with the intention of resigning but was not permitted to complete his statement and was told he was discharged. Under the circumstances, the employe intended to quit and acted in accordance with those intentions but was pre- empted from quitting by the employer. For unemployment benefit purposes, he is deemed to have terminated the employment relationship, by having engaged in conduct inconsistent with an intent to continue the employment relationship. The commission therefore finds that, in week 41 of 1996, the employe quit his employment within the meaning of sec. 108.04 (7)(a), Stats.

The employe filed a claim for benefits in the weeks ending November 2 and November 9, 1996 (weeks 44 and 45), only because his full-time employer reduced his work hours in those weeks. The statutes provide that if an employe terminates his or her employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employe has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was within some statutory exception. The commission concludes that the employe's quit falls under sec. 108.04 (7)(e), Stats., and so modifies and affirms the appeal tribunal decision.

Sec. 108.04 (7)(e), Stats. provides:

Paragraph (a) does not apply if the department determines that the employe accepted work which the employe could have refused with good cause under sub. (8) and terminated such work with the same good cause and within the first 10 weeks after starting the work, or that the employe accepted work which the employe could have refused under sub. (9) and terminated such work within the first 10 weeks after starting the work.

This statute essentially provides that an employe may, within 10 weeks, quit employment he or she would have had good cause to refuse in the first instance. The employe without question would have had good cause in the first instance to refuse the employment in this case, though, because when he took the employment he already had a full-time job and another part-time job. The unemployment compensation law does not require the degree of effort the employe in this case was attempting to sustain. The commission therefore finds that the employe accepted work in week 39 of 1996, that could have been refused with good cause, and that the employe voluntarily terminated that employment in week 41 of 1996, with the same good cause and within 10 weeks after starting the work, within the meaning of sec. 108.04 (7)(e), Stats.

DECISION

The commission's March 28, 1997 decision in this case is set aside. The appeal tribunal decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 41 of 1996, if otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin unemployment compensation law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed April 18, 1997
harjodo.usm : 105 : 7  SW 800  VL 1034

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission originally believed the case was to be resolved under sec. 108.04 (7)(o), Stats. The commission subsequently determined that the employe's circumstances fit precisely within sec. 108.04 (7)(e), Stats.

cc:
GREGORY A FRIGO, DIRECTOR
BUREAU OF LEGAL AFFAIRS


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