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


MARY I BAILEY, Employe

DIVISION OF ECONOMIC SUPPORT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606930MW


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. The commission also determines that further hearing is not warranted.

DECISION

The employe's request for further hearing is denied and the appeal tribunal decision is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 17 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: January 29, 1999
bailema.usd : 135 : 1  VL 1023.20  VL 1080.20  PC 717

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Generally, pursuant to Wis. Stat. § 108.04(7)(a), an employe who terminates her employment is ineligible for UI benefits. However, Wis. Stat. § 108.04(7)(c) permits a worker to voluntarily terminate employment in the case of health problems which may continue to make employment impossible, but only where the employe has pursued and exhausted reasonable alternatives short of quitting, and only where the employe remains generally able to work and available for work after quitting. Here, the employe did not exhaust reasonable alternatives before quitting, such as requesting a leave of absence from the employer. Furthermore, with regard to her health, the employe was not advised by her physician to quit her job with the employer. The doctor opined that increased stress on the job caused one of her medical conditions to worsen. However, the employe failed to produce any medical evidence which would support the conclusion that the employe was physically unable to perform her job for the employer due to health problems.

The other statutory exception that may have permitted benefits in this case can be found at Wis. Stat. § 108.04(7)(b). Under that statutory subsection, an employe may be eligible for benefits if her quitting is with good cause attributable to the employer. Although the employe argues that the stress she suffered as a result of her job amounts to good cause attributable to the employer, the commission fails to find any fault or blameworthy conduct on the part of the employer.

The commission notes that the employe's relationship with management as well as her job satisfaction changed sometime after June of 1997 when the employe's job changed from being a field job to an in office job. The employe contended that she was treated differently than her co-workers and that her supervisor monitored her time and not the time of other workers. The employe also contended that her supervisor sent her e-mails criticizing her performance. While it is true that the employe's time was now monitored in a different fashion, the time of each worker in the office was monitored in the same fashion. And as noted by the ALJ, because of confidentiality, the employe would not have been aware of the discipline imposed on her co-workers because each worker within the department was held to the same standard. Additionally, the employe was not the only individual noted for leaving the three day training session early without her supervisor's knowledge or approval. Thus, while the employe may have had valid personal reasons for quitting, the employe's job dissatisfaction cannot be attributed to disparate treatment she allegedly received since all of the workers in the office were required to adjust from field jobs to office desk jobs.

The employe also raises concern with the fact that her personal representative was unable to attend the hearing because of "his need to get into a doctor." The employe explained that she did not know of this problem until it was too late to reschedule according to the department's rules. The employe requests a delay until she is in a position to hire an attorney and subpoena witnesses. The commission cannot grant the employe's request for another hearing or a delay. Legal or non-legal representation is not required before a UI hearing may proceed. Subpoenaing witnesses should have been taken care of prior to the hearing. Both parties were provided with sufficient notice that the hearing would be their only opportunity to present evidence before an ALJ, including subpoenaing witnesses. The commission therefore will not grant the employes' request.

cc: DIVISION OF ECONOMIC SUPPORT

ATTORNEY WILLIAM M WITTER
DEPARTMENT OF WORKFORCE DEVELOPMENT


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