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

MARILEA D WALKER, Employe

HOME SUPPLY COOP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402186MW

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 beginning in week 24 of 1998, if otherwise qualified. This matter is remanded to the department for an investigation, if one has not already been conducted, as to the respondent's status as an employe of the employer, for the purposes of the unemployment insurance law.

Dated and mailed: February 18, 1999
walkema.usd : 135 : 1  AA 110  AA 120 AA 230

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The sole issue for commission review is whether the employe was with due notice called on by her current employing unit to report for work actually available as of week 24 of 1998, whether the employe was available for that work and the amount of wages the employe would have earned in that week by performing all of the available work. Questions or concerns surrounding the employe's employment status or separation cannot be addressed by the commission, as it does not have jurisdiction at this time to address either matter.

The employer contends that the employe was not available for all the work provided her because she was not expending the effort necessary to meet the employer's expectations concerning sales calls. Specifically, in its petition, the employer contends that from experience, it knows that a salesperson will meet its sales requirements if he or she spends the requisite amount of time making telephone contacts and scheduling home visits. The employer further contends that had the employe put in the time necessary to call the referrals that were available to her through various sources, it is likely, based on her closing percentage and experience that her membership applications would have been substantially higher than they had been.

These arguments, however, actually address the sufficiency or the adequacy of the employe's performance and not whether she was actually available for the work or whether she performed all of the work made available to her. The employer's dissatisfaction with the employe's job performance is not a factor considered when applying the specific statute at hand. Conversely, the same can be concluded when an employe refuses work available because she is sick or has a planned vacation. The relevant statute does not consider a good cause standard as to why the employe refused the work or the quality of her actual work performance when determining whether the statute has been met. Either an employe is available for work and performs it or she does not.

In sum, the commission affirms the appeal tribunal decision because it reaches the same conclusion that the ALJ did. The employe exercised sufficient diligence to complete all work that was made available to her. Under the circumstances, the employe was actually available for work for the employer and did perform all work made available to her by the employer.

NOTE: The commission also affirms the ALJ's remand order to the department for an investigation, if one has not already been conducted, as to Ms. Walker's status as an employe of the employer, for purposes of the unemployment insurance law.

cc: ATTORNEY ROBERT J REINERTSON
HESS DEXTER REINERTSON & BRUNNER SC

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]