KELLY J BAHRKE, Applicant

DIVERSIFIED WOODCRAFTS INC, Employer

The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and order dated May 17, 2002. The employer submitted an answer and both parties submitted briefs. At issue is whether the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. § 102.35(3).

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge concerning his assessment of the credibility of the witnesses, makes the following:

Delete the last full paragraph of the administrative law judge's findings of fact on page 7 and the remainder of the administrative law judge's order beginning on the bottom of page 7 and the remainder on page 8 of the administrative law judge's findings and order and substitute therefor:

"The employer unreasonably refused to rehire the applicant from January 2, 2001. The parties stipulated the applicant has been employed for a period of 52 weeks following that date. Therefore, the applicant is entitled to 52 weeks at the rate of $332.06 per week for a total of $17,267.12 less attorney's fees of $3,453.42, leaving a total payable to the applicant of $13,813.70."

NOW, THEREFORE, this

The findings and interlocutory order of the administrative law judge are affirmed in part and reversed in part in accordance with the above findings. Within 30 days from the date of this order the employer shall pay to the applicant Kelly Bahrke the sum of Thirteen thousand eight hundred thirteen dollars and seventy cents ($13,813.70) and shall pay to the applicant's attorney, Samuel Bomier, the sum of Three thousand four hundred fifty three dollars and forty two cents ($3,453.42) as attorney's fees.

Jurisdiction is reserved.

Dated and mailed February 28, 2003
bahrkke . wrr : 175 : 2  ND § 7.25  § 7.34 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant asserts in her petition for commission review the administrative law judge erred in determining the employer's period of unreasonable refusal to rehire ended as of March 4, 2001. The administrative law judge concluded that the employer's unreasonable refusal to rehire the applicant terminated with offering the applicant an opportunity to apply for the position of customer service representative in March 2001, and the subsequent decision to hire another person for that job. The administrative law judge concluded despite the previous unreasonable response of the employer to the situation offered by applicant's injury and termination, this situation was remedied in March 2001 during the time in which the applicant was offered an opportunity to apply and was turned down.

However, under Wis. Stat. § 102.35(3), an employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, by order of the department has exclusive liability to pay to the employee the wages lost during the period of such refusal not exceeding one year's wages. In this case, the employer unreasonably refused to rehire the applicant as of January 2, 2001. The applicant had been injured on the job and was not able to return to her former work due to her physical restrictions due to her work injury. The employer terminated the applicant because there was no work available within her restrictions. The applicant informed the employer in December 2000 she was willing to perform other work for the employer including clerical work. The employer subsequently hired Ms. Johnson for the customer service representative position on January 2, 2001. The employer admitted it did not consider the applicant for the position even though she met the minimum requirements for the job. The employer did not provide any reasonable explanation for simply ignoring the applicant and her qualifications when hiring for the customer service representative position in December 2000. Mr. Cross, the applicant's supervisor, admitted the applicant had the basic requirements to fill the customer service representative based on her high school degree, product knowledge and clerical skills. Mr. Cross admitted Ms. Johnson, who was hired for the customer service position, possessed no greater skills or product knowledge than the applicant.

The commission agrees with the administrative law judge the applicant established that she was terminated by the employer in December 2000, and there was suitable work available within the applicant's physical and mental limitations for a customer service representative in December 2000, and the employer had no reasonable cause to refuse to rehire the applicant. Therefore, the employer unreasonably refused to rehire the applicant as of January 2, 2001 when it hired Ms. Johnson for the customer service representative position.

However the commission disagrees with the administrative law judge the employer remedied its prior unreasonable refusal to rehire the applicant when it considered the applicant's application on March 4, 2001 when the customer service position reopened. The evidence indicates the applicant applied for the customer service representative position in March 2001 when she saw an advertisement in the newspaper. The employer did not contact the applicant concerning the opening and she was not hired for the position or given an interview. The commission consulted with the administrative law judge concerning his assessment of the witnesses' demeanor and testimony concerning the applicant's willingness and availability for the customer service representative position. The commission has no disagreement with the administrative law judge's credibility assessment.

The commission finds as a matter of law the employer could not remedy a prior unreasonable refusal to rehire the applicant for the customer service position by refusing to rehire the applicant, albeit with more consideration, when the position again became available in March 2001. Wis. Stat. § 102.35(3) does not contemplate that an employer may remedy an unreasonable refusal to rehire by again refusing to rehire the applicant when suitable work becomes available. Under Wis. Stat. § 102.35(3) an employer who unreasonably refuses to rehire an employee is liable for up to one year's wages lost during the period of refusal. The only manner in which the unreasonable refusal may be remedied under the statute is if the employer subsequently offers the applicant suitable work within her restrictions which the applicant accepts, or if the applicant refuses to accept an offer suitable employment without reasonable cause.

In this case, the employer unreasonably refused to rehire the applicant for the customer service position when it became available in December 2000 pursuant to Wis. Stat. § 102.35(3). Subsequently, the employer did not offer the applicant any suitable work and the applicant did not refuse any work with the employer within her restrictions. The parties stipulated the applicant had been unemployed following the refusal to work for more than 52 weeks. Therefore the applicant is entitled to one years' lost wages at the rate of $332.06 per week less attorney's fees.

cc: 
Attorney Samuel J. Bomier
Attorney Dennis W. Rader

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