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


JACK F ANDERSON, Employe

KIRKWOOD IGA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200681EC


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 about 16 years as a meat cutter and meat department manager, for the employer, a retail grocery business. His last day of work was March 17, 2000 (week 12).

The first issue to be decided in this case is whether the employe voluntarily terminated his employment or was discharged by the employer. In addition, it must be determined whether, if the employe was discharged, his discharge was for misconduct connected with his work, and whether, if the employe quit, the employe's quitting was for any reason that would allow immediate unemployment insurance payments.

The employe was initially hired as a meat cutter, but about a month after he started, the meat department manager stepped down and the employer made the employe the manager, and the former manager became a meat cutter.

On March 6, 2000, the employe told the store manager that he wanted to step down as the meat department manager. The store manager stated that he would need to speak with the employer's president but that the president was out of town. The store manager asked if the employe would be willing to take a job as a meat cutter either at Chetek or Bloomer. The store manager said he did not know what would happen but that they would see. The employe did not indicate that he would be willing to remain as the manager if he could not have a meat cutter position. On the employe's last day of work, the store manager told the employe that since he had given his two-week notice, he could go ahead and go. The employe said he could work until inventory was ended, which would have been through the following week. The employe spoke with the meat cutter who was taking the position of meat department manager, and that person told the employe that he might as well go immediately. The employe was told, on his last day of work, that there was not a position in Chetek.

The employer asserts that the employe's actions amounted to quitting his employment. The commission agrees. The employe indicated he wished to step down as meat department manager. He did not request that he be transferred to a meat cutter position. There were two positions open, but the employe did not ask whether he could have had one of those positions before deciding to give his notice. In fact, the employe testified that he would not be willing to stay on as meat manager. He gave a two-week notice, however, he was discharged prior to the ending of his notice period. He is therefore eligible for benefits from the time of discharge (March 17) until his notice period expired (March 25) week 13. The employe gave his notice and intended to resign whether he could transfer to a meat cutter position or not. The commission concludes that the employe quit his employment with the employer.

The employe contended that he quit his job because the job entailed too much responsibility and pressure. While it is understandable that the employe may have grown tired of the responsibility and pressure after so many years, it was not established that the pressure was so great as to give the employe good cause attributable to the employer for quitting. Further, the employe did not discuss options for relieving the pressure with the employer, but simply decided to quit. Under the circumstances, the commission cannot conclude that the employe's quitting was with good cause attributable to the employer or for any other reason which would allow for immediate benefit payment.

The commission therefore finds that, in week 14 of 2000, the employe terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a) but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employe was paid benefits in week 14 through 23 of 2000, totaling $3,042.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8), 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 14 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 weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $3,042.00 to the Unemployment Reserve Fund.

Dated and mailed July 28, 2000
anderja.urr : 145 : 5   VL 1007.01  VL 1080.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. She thought he was not aware that he might not be demoted to a meat cutter. She further believed that the employer was to let him know about a meat cutter position, which it failed to do. The employe was aware that there were two meat cutter openings and he did not know that the new manager would not want him to continue his employment. However, for the reasons stated in its decision, the commission disagrees with the ALJ's determination that the employe was discharged.

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.


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