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


SHAUN R PAYNE, Employe

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601148MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 2 of 2000, if otherwise qualified.

Dated and mailed August 18, 2000
paynesh.usd : 105 : 1   VL 1059.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer first argues in the petition for review that it was not unreasonable for it to refuse to allow sick pay to the employe for her December 13 absence. The commission must agree with the administrative law judge, though, that it was. The employer's Finance Work Rules do state that an employe is both to leave a voice mail message with his or her immediate supervisor and also to make voice contact with another supervisor regarding absences. As the administrative law judge indicated, though, there is no stated penalty for a failure to completely follow that procedure. In addition, despite the employer's assertions at hearing to the contrary, the employer's work rules cannot reasonably be interpreted to provide for docking of pay or time for failing to make voice contact with someone at work (as opposed to engaging in repeated tardiness). For these reasons, the commission agrees with the administrative law judge that the employer's denial of pay for December 13 was very unreasonable.

The employer next argues that the employe did not exhaust administrative remedies available to her, such as that of filing a grievance. It is true that employes generally can be expected to consider alternatives to simply quitting an employment, when they have been wronged by their employers. In this case, though, the decision to withhold the employe's sick pay was confirmed by both the accounts payable supervisor and his supervisor, the general accounting supervisor. Given this factor, under the limited circumstances of this case the commission does not believe the employe had to take the additional step of filing a collective bargaining grievance.

The employer also challenges the administrative law judge's finding to the effect that the employer's actions had a significantly detrimental effect upon the employe's financial circumstances. The employer asserts that loss of sick pay for one day is not a significant employment event in an employment of two and a half years. This is a subjective matter; of course, from an employer's point of view, one day's pay for one employe is a small percentage of the employer's operating costs. From an employe's point of view, however, the matter is qualitatively different.

The commission notes, finally, a decision along similar lines: Murray v. Professionally Speaking, Inc., UI Dec. Hearing No. 97605916MW (LIRC 3-6-98). In that case, the employer unilaterally reduced the employe's salary from $350.00 per week to minimum wage, when the employe missed two days of work (with the employer's permission) one week. In finding good cause for the employe's quit, the commission stated that "the employer's actions in reducing the employe's pay in this matter were highly punitive and, in the absence of some express agreement on the part of the employe, inherently unreasonable." The employer's actions in the present case admittedly were not as severe as those in the cited case. They still were sufficiently severe to give the employe good cause to quit her employment, however. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The employe did not speak to a real person on December 13, 1999 so she violated the employer attendance policy. Whether or not the employer rules allow for a denial of sick pay as of result of the rule infraction does not resolve the case. First, the employe could have filed a grievance and received the pay if denial of pay was a violation of the contract.

The second reason for not finding a quit good cause attributable to the employer is because most of the testimony at the hearing by the employe did not even relate to missing a day's pay. The employe had many other complaints that do not rise to the level of good cause attributable to the employer to quit.

Murray v. Professionally Speaking , Inc., is an entirely different case where the employer reduced the salary to minimum wage because of 2 absences. Murray is not at all on point. In this case, the employe had an opportunity for a grievance that might very well have resulted in the employe being paid for December 13. The employe had other reasonable options to resolve the pay issue prior to quitting.

For these reasons, I would reverse and find that the employe quit but not within any of the exceptions that would allow for the immediate payment of benefits.


______________________________________
Pamela I. Anderson, Commissioner


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