Wis.LIRC UC Decision: Moore, Latina - July 13, 2001 - SW 800 - Suitable Work, general; SW 815 - Domestic circumstances, Suitable Work - good cause for refusing work must be determined in light of the facts and circumstances in each particular case as they apply to basic tenets of reason and good faith - employee refused suitable work with good cause where she was was legitimately concerned about the disruption change in the shift would have on her child's wellbeing - although employer could offer childcare for the employee's child, employee's unwillingness to take her child home every night at midnight at the end of her shift is not unreasonable when applying the basic tenets of reason and good faith to the facts at hand

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

LATINA M MOORE, Employee

SCAIFE DAY CARE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601625MW

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 employee worked approximately six months as an assistant teacher, first shift, for the employer, a daycare service. The employee's last day of work was January 8, 2001 (week 2).

On Friday, January 5, 2001, the employer provided the employee with written notice that as of Monday, January 8, the employee would begin working on the second shift. The employee indicated that she did not want to work on the second shift because she did not want her small child out late at night. The employee was again instructed to report to work for second shift on Monday, January 8. The employee refused. The employee was given notice that should she continue to refuse she would lose her job. The employee refused to work the second shift and thus lost her job.

The initial issue is whether the employer discharged the employee for refusing the transfer of work to second shift or whether the employee voluntarily terminated her work. The ALJ found that since the employee had the ability to continue working, her decision not to continue working amounted to a voluntary termination of her employment. The commission respectfully disagrees, concluding that the employer unilaterally altered the terms or conditions of the employee's employment by transferring her to second shift and as such, the remaining issue is whether the employee failed to accept an offer of new work. Pursuant to Wis. Stat. § 108.04(8)(a), an employee is eligible for benefits if she had good cause for failing to accept the suitable work and remains generally able and available for work.

The term "good cause" is not defined in the statutes and the UI Act does not specify the criteria to be considered in determining what is and what is not good cause. Good cause must be determined in light of the facts and circumstances in each particular case as they apply to basic tenets of reason and good faith. Fall, Inc. v. DILHR and Kleinvachter, Dane County Circuit Court Case No. 157-245, January 13, 1978 and Carl v. Herman's Landing and Industrial Commission, Dane County Circuit Court Case No. 122-245, October 17, 1967. Thus, when determining whether an employee has established good cause within the meaning of Wis. Stat. § 108.04 (8)(a), the commission applies a reasonable person standard to determine whether the employee established good cause for failing to accept suitable work.

Under the circumstances, the commission concludes that the employee refused suitable work with good cause. The employee was legitimately concerned about the disruption the change in the shift would have on her child's wellbeing. Although the employer could offer childcare for the employee's child, the employee's unwillingness to take her child home every night at midnight at the end of her shift is not unreasonable when applying the basic tenets of reason and good faith to the facts at hand.

The commission therefore finds that in week 2 of 2001, the employee failed to accept an offer of suitable work with good cause, within the meaning of Wis. Stat. § 108.04 (8)(a) and that she was able to work and/or available for work, within the meaning of Wis. Stat. § 108.04 (8)(e).

DECISION

The appeal tribunal decision therefore is reversed. Accordingly, the employee is eligible for unemployment benefits, if she is otherwise qualified.

Dated and mailed July 13, 2001
moorela . urr : 135 : 3 SW 800 SW 815

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ as no credibility issues existed. Consequently, this reversal is as a matter of law. It is undisputed that the employee refused to accept the "transfer" to second shift work because she did not want to take her child home each night at midnight at the end of her second shift. The commission concludes the employee had good cause to refuse such suitable work within the meaning of Wis. Stat. § 108.04(8)(a).

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uploaded 2001/07/16