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

JOHN A MAHERS, Employe

IA DAVEY TREE EXPERT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400395AP

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 2 of 1999, if otherwise qualified.

Dated and mailed June 11, 1999
maherjo.usd : 105 : 2 VL 1034

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge that the employe is eligible for unemployment insurance. The employer, in its petition for review, argues that the employe's resignation was without just cause. The employer, and perhaps the employe as well, miss the point of the decision. The employe's eligibility for unemployment insurance has nothing to do with either the employer or the employe; it has to do with the geographic distance between the employe's residence and the employment (approximately 500 miles). Wis. Stat. § 108.04(7)(e), the statute pursuant to which the employe is eligible for unemployment insurance, states that an employe can quit employment within ten weeks, and remain eligible for unemployment insurance, if the employe would have had just cause not to accept the work in question in the first place. Clearly, though, the employe would have had good cause, based on the distance, not to accept the work with the employer in the first instance. Because of this, the employe also had the right to quit that employment within ten weeks. Again, this holding attributes no fault at all to either the employer or the employe. It simply reflects the reality that 500 miles was too far away for the employe to have had to take the work; likewise, the employe was not obligated to move his family to Iowa in order to continue the employment with the employer. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: ATTORNEY CLAY F TEASDALE
MURPHY AND TEASDALE

WILLIAM PORTER
C/O DAVEY TREE

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