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


KATHLEEN L LATUS, Employe

J F COOK CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608494MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe had worked as a receptionist for about one year for the employer. Her employment ended in October of 1998. In September of 1999 the employe was released to return to work following a back injury.

After an unemployment insurance hearing on October 26, 1999, the owner informed the employe that she could have her old job back and that it would be available on November 8, 1999. The employe indicated she had an interview that Friday for a job within her medical restrictions. On October 29 the employe called the owner and stated that she was still awaiting word from her interview. During the conversation the employer noted that it had sent the employe a certified letter, and read its contents to the employe. The letter noted that the employe was being offered a receptionist position, 7:30 a.m. to 4:30 p.m., Monday through Friday with the same salary and benefits she had previously had. The owner informed the employe that the owner needed a decision by November 4, 1999 because the employer was leaving town and was going to hire someone else by that date.

On November 4, 1999 at approximately 7:00 a.m. the employe left a message on the employer's answering machine again saying that she had not yet heard from her interview. She indicated she was going to job service. By the time the employe got home later that day she had received a letter indicating that she did not receive the position. By that time the employer had closed. She did not call the employer because she was told that the employer had to have an answer by November 4 and she knew the employer was closed and the owner was out of town.

The issue to be decided is whether the employe had good cause for refusing the employer's offer of work.

The employe did not accept the employer's offer by the deadline set by the employer because she was awaiting word on another position for which she was going through an interview process. The employe failed to accept the employer's offer by the deadline set by the employer for a valid reason.

The commission therefore finds that in week 46 of 1999, the employe failed to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a), and that the employe was able to work and available for work within the meaning of Wis. Stat. § 108.04(8)(e).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 46 of 1999, if she is otherwise qualified.

Dated and mailed February 24, 2000
latuska.urr : 132 : 6  SW 800

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to indicate that the employe had good cause for refusing the employer's offer because she was awaiting word on a position for which she had applied before the employer offered her work. The employer chose the deadline and the employe could not control the fact that the prospective employer's rejection letter did not arrive until the deadline. While the employer argues the employe could have left a message after work hours the fact is that the employer set the deadline and informed the employe that the employer was leaving town.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The administrative law judge found that the employe had good cause to refuse the employer's job offer because her physical restrictions were such that the employe could reasonably conclude that the employer would not accommodate the restrictions. Exhibit 3, the employe's medical restrictions were not so great that the employe could not have reasonably performed the receptionist job for the employer. She was not required to be in one position for extended periods of time and the employer had many phones so she would never have been far from a phone.

The employer offered her the position on October 26, 1999. The employe told the employer that she had an interview for October 27, 1999. After the interview, she called the employer and told her the interview looked good and wanted to hold off deciding until she found out if the other employer would hire her. The employe testified "The interview I had was with Air Cargo Carriers. When I had the interview on October 27, they told me that everything looked good and that they were going to call me about a 2nd interview and that they were hoping to have everything finished up by the end of the week, which is what I then relayed to Mrs. Honeck. I was not called for the 2nd interview. I received a letter from Air Cargo on 11/4, but not until I got home at a late hour. JF Cook was already closed." The letter from Air Cargo was written on November 2, 1999.

I believe that when she had not heard from Air Cargo by the end of the week she should have questioned if she was going to have a 2nd interview. I believe she should have called Air Cargo by at least November 3 or she should have accepted the employer's real job offer over a possibility of a 2nd interview. I am not certain that the employe ever seriously considered the employer's job offer because it appears she believed the job exceeded her restrictions even if it was within her doctor's restrictions.

For these reasons, I would reverse and find that the employe refused the job offer without good cause.

___________________________________
Pamela I. Anderson, Commissioner


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