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


AMI D SIMONS, Employe

STATE CAPITOL CREDIT UNION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000990MD


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 for 11 years, most recently as a senior collector for the employer, a credit union. Her last day of work was January 14, 2000 (week 3).

Prior to January, the employe worked from 7:30 a.m. until 4:15 p.m., Monday through Friday. A month before she quit, she was notified that her schedule would change to a rotating schedule in which she would start at 9:00 or 9:30 a.m. and complete work at either 6:00 or 6:30 p.m. The employe was unable to accept this new schedule because she could not find childcare to cover it and her husband worked out of town and could not pick up their son from daycare. The employe sought two transfer opportunities. She was unsuccessful. She gave notice of quitting and worked until the last day prior to the scheduled beginning of the new schedule.

The issue before the commission is whether the employe's reason for quitting constituted an exception allowing the immediate payment of benefits.

The first inquiry is whether the employe quit with 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's hours were shifted within first shift hours. She was not required to change shifts which would have been a significant change in the conditions of her employment and would constitute new work. These small changes in her schedule do not amount to new work nor do they show employer fault. The employer made an impersonal business decision to maximize its ability to contact customers. The employe's quitting therefore was a personal reaction to an employer's business decision but does not amount to good cause attributable to the employer.

The ALJ found the employe quit because she was unable to work due to the health of a family member within the meaning of Wis. Stat. § 108.04(7)(c). There is no precedent for allowing benefits under this section where no evidence concerning the health of the employe's child was offered into the record. Presumably, the ALJ was seeking to expand the definition of health to include such general health and safety concerns as providing adult supervision for a minor child. However, to find a quit unable in these circumstances is outside the plain meaning of the statute and consequently constitutes an error of law. In its petition for commission review, the department concedes that doing so here constituted department error by the ALJ. Since there was no showing of employe fault in the commission of this error, waiver of the recovery of the overpaid benefits is appropriate.

Therefore, the commission finds that in week 3 of 2000, the employe voluntarily terminated her employment with the employer but that the reason did not fall 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 weeks 4 and 5 of 2000 in the total amount of $594; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

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

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 3 of 2000, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the overpaid benefits is waived. The employe is not required to repay the department, nor will the overpayment be recovered by any other means. The appropriate employer accounts will be credited immediately with the overpaid amounts.

Dated and mailed May 24, 2000
simonam.urr : 178 : 5  VL 1039.01  VL 1023.13  BR 335.01

/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 prior to reversing but does so as a matter of law.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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