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


JERRY M HERISON, Employe

THE COURTYARD APTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400510SH


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 worked 14 months for the employer. His last day of work was January 5, 2000 (week 2).

On January 4, 2000, the employe found a fax on the employer's desk which contained a job service notice to fill his position. On his next scheduled work day he confronted his supervisor and was told that the employer was exploring its options because they were unhappy with his performance. The employe worked till the end of the day. The employe called in sick the following day. However, he came in at midday, handed in his keys and pager, and said they could find someone they liked. He requested and received his personal belongings.

The first issue is whether this is a quit or discharge. If a quit, then the issue becomes whether it was with good cause.

While the employer had plans to discharge the employe, events did not progress to the point where the employer gave him notice that he would be discharged effective by a certain date. It did not intend to fire the employe unless it found a suitable replacement. Under the circumstances, the employe's discharge was not immediately imminent and this therefore cannot be construed as a discharge. The employment relationship ended when it did at the employe's initiative when he quit.

The final issue is whether his reasons for quitting amount to good cause. "Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The employe quit after he became aware that the employer was dissatisfied enough with his employment that it was seeking a replacement. There was no employer fault in this but a business decision. The employe might have continued to work for the employer while he sought for other employment. The employer was not going to replace the employe unless it found someone better. While it is understandable that the employe might wish to quit when informed that the employer would replace him if it found someone better, this does not amount to good cause attributable to the employer to quit.

The commission therefore finds that in week 2 of 2000, the employe terminated work with the employer but not within any exception permitting the immediate payment of benefits, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employe was paid benefits in the amount of 1,764 for weeks 3 through 10 of 2000; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 2000, 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. The employe is required to repay $1,764 to the Unemployment Reserve Fund.

Dated and mailed May 26, 2000
herisje.urr : 178 : 5  VL 1007.15

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding credibility prior to reversing his decision. The commission does not disagree with the credibility conclusions reached by the ALJ but does not regard the employer's failure to notify the employe that it was dissatisfied with him and sought his replacement as employer fault. The employer's use of discipline in an employment setting falls within its own prerogative. The employer could discharge the employe without any prior warning that his job was in jeopardy. Therefore, the commission concludes that the employe did not have good cause to quit.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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