Wis.LIRC UC Decision: Croft - August 4, 2000 - VL 1007.01 Quit vs. Discharge/Layoff - General - separation of employe after her failure to take certain tests required by employer, not a quit, where employe would have been required to pay $125 fee to take the tests

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

PAMELA R CROFT, Employe

OLAS HOUSE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601433MW

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 three months as a caregiver for the employer, a residential care facility. The employe was paid $8.50 per hour. Her last day of work was January 11, 2000 (week 3).

The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

The employer expected the employe to complete certain government mandated tests. The employer's company provided that the employe would need certain certificates within 90 days of her employment, and some within six months. There was also training that needed to be completed yearly. It further informed her that if the training was not completed by the required time she would be terminated. The cost of certain required testing was $125 or more. The employer's owner agreed that the handbook did not indicate that the workers must pay for the testing. However, the owner asserted that the employe was told that she had to pay for the tests as a condition of employment.

The employe asserted that she worked at several group homes, and took the tests at each place. At those places, the employer would pay for the test. The tests were done at their facilities, so she could not transfer her certificates to another facility. The employe denied that the testing requirement was covered with her at orientation. Around the second week of November the employer told the employe that she had to pay for the tests herself. Around December 1, the employe asked whether she could pay for the tests at the end of February when she got her tax refund. The employe told the employer that she thought that she should have been told that she needed to pay for the tests at the time of hire.

The employe asked her parents and her sister whether she could borrow money from them in order to take the tests, however, they were unable to loan her the money. Because she had not completed the tests within the required time, the employer would not allow her to continue work. The employe indicated that at the time of hire the employer went through a checklist of some of the things that were expected of her, and checked things off as they went through them. The commission remanded this matter on May 4, 2000 so that the employe would have the opportunity to present a copy of this checklist. The "explanation of facility and state training requirements" checklist is not checked off on the employe's copy of the checklist.

The employer's co-owner testified that she conducted the employe's orientation a couple days after she was hired. She also asserted that she went through the testing requirements with the employe.

The employe asserted that she did not intend to quit, but was unable to immediately pay for the testing that the employer required. The employe made the employer aware of her financial inability to pay for the tests and requested additional time to find the necessary money. The employer did not allow her additional time, did not suggest that she could work additional hours or get an advance on her salary. Instead it simply refused to allow her to continue working. The employe clearly wanted to continue working for the employer. Under these circumstances, the employe did not quit, but rather was discharged by the employer. The commission cannot find that the employe's failure to pay for the tests required by the employer amounted to misconduct, where she was told shortly before the tests that she would be required to pay for these tests herself at the time of hire and where she was not allowed sufficient time to save over $125 to pay for these tests.

The commission therefore finds that in week 3 of 2000, the employe was discharged and that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. � 108.05.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 3 of 2000, if she is otherwise qualified.

Dated and mailed August 4, 2000
croftpa.urr : 145 : 3 VL 1007.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held both the original hearing and the remand hearing. The ALJ indicated that at the original hearing, both parties appeared credible. However, he determined after the second hearing, that the employe was clearly the more credible party. He reached that conclusion in part based on the employe's copy of her checklist. He also noted that at the first hearing the employer's witness indicated that the employe was told of the requirement that she pay for testing at the time of hire. At the second hearing, the employer's witness indicated that the employe was not told of the requirement until several days after she was hired. Thus, the employer's testimony was inconsistent on a critical point. The ALJ also pointed out that this was a relatively new employer and that it may easily have forgotten to mention this point to the employe at the time of hire. The commission agrees with the ALJ's credibility determination, and his reasons therefore, in particular as none of the documents, which were drafted by the employer, point out that the employe is required to pay for the testing.

cc: ATTORNEY ROBERT N MEYEROFF

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