PAUL GRETZINGER, Applicant
MARION PLYWOOD CORP, Employer
The respondent employer, Marion Plywood Corp., submitted a petition for commission review seeking dismissal of the applicant's claim for unreasonable refusal to rehire pursuant to Wis. Stat. § 102.35(3).
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 order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted pursuant to Wis. Stat. § 102.35(3).
Dated and mailed
May 24, 2011
gretzpa : 150 : 6 ND6 8.28; 8.32; 8.33
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The respondent has petitioned for commission review, asserting that the administrative law judge (ALJ) erred in finding that the respondent unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3). Specifically, the respondent contends that it had reasonable cause to terminate the applicant in May 2009 and, again, had reasonable cause not to rehire him in 2010 based upon the respondent's good faith actions in not hiring the applicant for temporary positions and in other positions which it claimed the applicant was not suited for.
At the hearing, it was stipulated that the applicant made a prima facie case and, thus, the burden had shifted to the respondent to demonstrate reasonable cause for the termination and lack of availability of work as required by the statute. In particular, the applicant sustained a work injury on September 7, 2006. Following several surgeries, he was ultimately released to modified duty in October 2008 from which he did not return to work. On May 22, 2009, he was terminated due as part of the respondent's layoffs based upon economic downturn. As of July 15, 2009, the applicant reached an end of healing with final restrictions set forth in a Functional Capacity Evaluation provided to the respondent.(1) Subsequent to this end of healing and as of the date of the hearing, the respondent hired approximately 18 additional workers. The applicant submitted applications expressing interest in employment with the respondent but was not hired for any position with the respondent.
In an unreasonable refusal to rehire case, once a worker has established that he or she is an employee with a compensable injury who was denied rehire or was discharged, the burden then is on the employer to show reasonable cause for the failure to rehire or for the discharge. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1982).
In this case, the applicant's attorney does not contend that the termination itself lacked reasonable cause. In Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 123 (Ct. App. 1994), the court concluded that reasonable cause was satisfied in the case of position elimination to reduce costs and therefore to increase efficiency. The commission finds that the termination in May 2009, at the time of other layoff, did not raise the issue of unreasonable refusal to rehire under Wis. Stat. § 102.35(3).
However, after the layoff, the respondent hired a number of individuals and the ALJ found that the failure to hire the applicant in the (1) May summer term generalist positions and (2) the June permanent positions filled by Gunther and Chaignot violated Wis. Stat. § 102.35(3).
First, with respect to the summer generalist positions, the respondent contended that it had reasonable cause to refuse to rehire because although the applicant would have qualified to perform such work, he did not express an interest in temporary employment on an application he completed with the respondent. Yet, once the applicant was terminated by the employer, the applicant had no duty to contact the employer to see if work was available. L & H Wrecking Inc. v. LIRC, 114 Wis. 2d 504 (Ct. App. 1983). The applicant was not required to complete an application and the commission finds that his doing so after the employer generally advertised its hiring does not absolve the employer of its responsibilities. See Unified Management Company LLC v. LIRC & Gwendolyn Klay, No. 08-CV-1057 (Wis. Cir. Ct. Sauk Co., Aug. 5, 2009) (applicant did not have an affirmative duty to contact employer to say that she was willing to work in the same position but for fewer hours). Thus, the respondent has not established reasonable cause for the refusal to rehire for the summer generalist positions.
Next, with respect to the positions filled by Gunther and Chaignot, the commission agrees with the ALJ's assessment that this work was suitable for the applicant with minimal training. The respondent's witness presented conflicting evidence regarding the "category" of the work and the duties as described by the witness suggest that this would have been work the applicant could perform.
For these reasons, findings and order of the administrative law judge are affirmed.
cc:
Attorney Lynne Mueller
Attorney Tony Welhouse
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