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


SCOTT R BARTHOLOMEW, Employe

DIMAR COLLECTIBLES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201047EC


On July 16, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on August 3, 1999 in Eau Claire, Wisconsin before a department administrative law judge. On August 6, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The department petitioned for commission review of the appeal tribunal decision, and the matter now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Since November of 1998, the employe has worked full time as a technician for a display monitor manufacturer. On or about March 1, 1999, he began working as a sales associate for the employer, a retail sales business. His last day of work for the employer was June 17, 1999 (week 25). He initiated a claim for unemployment benefits on July 5, 1999 (week 28). The issue to be decided is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. The commission concludes that it was not, and so reverses the appeal tribunal decision.

When the employe began working for the employer, he worked from 8:00 a.m. to 4:30 p.m. for the manufacturer. He worked from 5:00 p.m. to 9:00 p.m. for the employer. In June of 1999, he was told that the shifts at the manufacturing business would be changed to four 10-hour days, from 7:00 to 5:30 p.m. Because the hours of work at the manufacturer conflicted with the hours of work at the employer, the employe had no choice but to quit his employment with the employer. He continued to work for the manufacturer. After his last day of work for the employer, he was notified that the manufacturer would be shut down during the calendar week ending July 10, 1999 (week 28).

The employe contended that his quitting was for a reason that permitted the immediate payment of unemployment benefits. The commission disagrees.

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 with good cause attributable to the employer or was within some other statutory exception.

Wisconsin statute § 108.04(7)(o) states that the quit disqualification does not apply to a worker who has quit his or her work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employe terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week. In this case, however, the employe did not receive a notice of termination from his full-time employer. Rather, he suffered only a one-week layoff. A condition of applicability of Wis. Stat. § 108.04(7)(o) is notice of termination from the full- time employer. A one-week layoff does not terminate an employment relationship, however; therefore Wis. Stat. § 108.04(7)(o) is inapplicable.

No other exceptions to the statutory disqualification apply. The commission therefore finds that, in week 25 of 1999, the employe voluntarily terminated his employment with the employer within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section. The commission also finds that the employe was paid unemployment insurance in the amount of $271.00 for week 28 of 1999, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c). The overpayment was the result of departmental error, and in no part due to employe fault as provided in Wis. Stat. § 108.04(13)(f). See Delzer v. Walmart Associates, Inc., Hearing No. 98202023EC (LIRC 5-6-99).


DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 25 of 1999, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the $271.00 overpayment is waived.

Dated and mailed November 18, 1999
barthsc.urr : 105 : 1  VL 1020  BR 335.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, the commission accepted the factual findings of the administrative law judge but considered reversal required because the one-week layoff was not a termination. The commission's reversal therefore is as a matter of law.

cc:
GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS


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