Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Robert T. Pinkos v. LIRC and Burgess Bοys Auto & Truck Service Center, Case No. 03-CV-010792 (Wis. Cir. Ct., Milwaukee Co., May 20, 2004)

full text available here

Digest Codes: VL 1005.01  VL 1080.20  BR 335.04 

The employee worked for about eight months as a mechanic for the employer. Two weeks before he quit his immediate supervisor called him a “brain-dead dumb ass” after the employee failed to hear him call for assistance. Later that day, the supervisor called him a “fucking crybaby” after he had asked the supervisor if he could leave because he was not feeling well. On the day before he quit, the supervisor again called him a “brain-dead dumb ass” for failing to tie up an exhaust system which was dragging on the ground. In response, the employee called the supervisor a “disrespectful asshole.” The supervisor sent the employee home for the rest of the day, and on the next day the employee quit. The employee did not bring his concerns about the supervisor to the owner’s attention because several months earlier he had argued with the owner concerning his failure to punch out before leaving to go one of his son’s school activities.

The appeal tribunal found good cause attributable for the quitting, but the commission reversed, emphasizing the fact that the employee did not give the owner a chance to address the situation by complaining about the supervisor. The employee appealed, asserting that the owner would not have addressed the situation even had he approached him. The employee also accused the owner of illegal behavior not complained about at the hearing. Finally, he asserted that his overpayment should be waived due to departmental error.

Held: The commission’s finding of a quit without good cause is affirmed. An employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that he is considering terminating his employment because of them. The commission reasonably concluded that the employee failed to give the employer a reasonable opportunity to correct the problem. The incident some months before in which the owner had "yelled at" the employee while criticizing him for failing to punch out was not sufficient justification for failing to alert the employer to the situation with his supervisor which the employee felt was so serious he had no choice but to quit.

With respect to the matter of the overpayment, the court looks to Wis. Stat. § 108.22(8)(c)2., which  provides that if a determination or decision is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a department error.  Therefore, the simple fact that the commission reversed the ALJ does not establish a department error. Unemployment Compensation Directive 94-33, promulgated by the department on June 6, 1994, gives guidance as to what constitutes department error.  It differentiates between situations where there is a clear misapplication of the law to the facts, and situations where different conclusions can be reached by reasonable minds.  In this case the ALJ and the commission focused on different facts and reached different conclusions of law.  There was no department error within the meaning of § 108.02(10e). 


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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