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


LYNETTE M STROETZ, Employe

EDELWEISS CHEESE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00002122WU


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 the employer, a cheesemaker, for approximately three years as a cheese packager. Her last day of work was March 14, 2000 (week 12).

In addition to her part-time work for the employer, the employe also had a full- time job for a company called Wisconsin Homes. Prior to March 15, 2000, the employe learned that she was going to be laid off from her full-time job from March 19 through March 23. On March 15 (week 12), the employe notified the employer that she was quitting her part-time job because it was too much for her to work both jobs. She performed no work for the employer thereafter.

The issue to decide is whether the employe's voluntary termination of her part-time work with the employer was for any reason permitting the immediate payment of benefits. The relevant exception to the quit disqualification is Wis. Stat. § 108.04(7)(o), which provides:

"Paragraph (a) does not apply to an employe who terminates his or her work in one of two or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employe terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week."

The appeal tribunal found that the employe's quitting fell within the above-cited exception. The commission disagrees, for two reasons. First, the exception in question only applies where an employe quits her part-time work before learning that she will be terminated from her full-time job. In this case, the employe acknowledged that she knew about the lay-off prior to quitting her job with the employer. Second, the commission has previously held that a one-week lay-off does not constitute a "termination" of employment, within the meaning of Wis. Stat. § 108.04(7)(o). Bartholomew v. Dimar Collectibles (LIRC, November 18, 1999); Delzer v. Walmart Associates, Inc. (LIRC, May 6, 1999).

The commission, therefore, finds that in week 12 of 2000 the employe voluntarily terminated her employment, within the meaning of Wis. Stat. § 108.04(7)(a), but that her quitting did not fall within the exception contained in Wis. Stat. § 108.04(7)(o), and was not for any other reason permitting the immediate payment of benefits.

The commission further finds that the employe was paid benefits in weeks 13 and 23 of 2000 in the total amount of $554, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). However, the statute provides that the department shall waive recovery of benefits that were erroneously paid if the overpayment was the result of a department error. Wis. Stat. § 108.22(8)(c). The statute defines "department error" as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10)(e). In this case, the department concedes that benefits were erroneously allowed due to a misapplication of law.

The commission, therefore, finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a department error, and did not result from the fault of the employe, as provided in Wis. Stat. § 108.04(13)(f). 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 12 of 2000, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefits rate that would have been paid had the quitting not occurred. The employe is not required to repay the sum of $554 to the Unemployment Reserve fund.

Dated and Mailed August 8, 2000
stroely.urr : 164 : 1  VL 1020  BR 335.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's decision is not based upon an assessment of witness credibility, but is as a matter of law.

cc: DIRECTOR GREG FRIGO
BUREAU OF LEGAL AFFAIRS


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