Wis.LIRC UC Decision: Schmelling - February 4, 1998 - SW 800 - Suitable work, General - refusal of offer of work; disqualification; good cause; SW 850 - Personal affairs; PC 714.04 - Evidence, Credibility of undisputed testimony - employee's testimony about how long it would take her to reach a personal appointment because of which she turned down a work assignment, was not inherently incredible and was unrebutted

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

KATHERINE A SCHMELLING, Employe

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97600724KN

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer is a temporary employment agency. The employe registered with the employer in October of 1995 and, since that time, has worked five assignments for the employer. Her most recent assignment paid $6.00 an hour and ended on November 22, 1996.

On December 11, 1996 (week 50), the employer contacted the employe at approximately 9:50 a.m. and asked her whether she was available for an assignment that day. The work would have involved distributing surveys at a grocery store at a pay rate of $6.48 an hour. The employe turned down the assignment because she had a personal appointment scheduled for that morning. The appointment related to obtaining medical assistance recertification for the employe's daughter and could not be rescheduled on short notice.

The issue to be decided is whether the employe had good cause for refusing an offer of work.

The employer contended that the job assignment was flexible and would not have conflicted with the employe's appointment. According to the employer, the assignment would have required the employe to work four hours any time between 9:00 a.m. and 8:00 p.m. However, while the job may have only required the employe to be at work four hours, the record did not establish that this information was conveyed to the employe. To the contrary, the employe testified that it was her understanding the assignment was for the whole day and that she was told she would not be able to take time off for her appointment. Although the employer disputed the employe's version of events, its only witness had never spoken with the employe about the job and had no firsthand knowledge as to what terms had been communicated to her. Under the circumstances, the commission concludes that the job offer did conflict with the employe's previously scheduled appointment and that this situation provided the employe with good cause to refuse the offer of work.

The commission therefore finds that the employe had good cause for her failure to accept an offer of suitable work in week 50 of 1996 , within the meaning of Wis. Stat. � 108.04(8)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits, provided she is otherwise qualified. She is not required to repay the sum of $381.00 to the Unemployment Reserve Fund.

Dated and mailed: February 4, 1998
schmelka.rev : 164 : 3 SW 800 SW 850 PC 714.04

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility. The administrative law judge indicated that he did not believe the employe's testimony because she did not provide exact hours and could not identify when the offer of work was made. He also indicated that if the employe had told the employer she had a personal appointment the employer would have documented that fact. Finally, the administrative law judge stated that he did not credit the employe's testimony regarding the length of the bus ride to her appointment. The commission does not share the administrative law judge's unfavorable assessment of the employe's credibility. To begin with, the commission does not believe that the employe's inability to recall with specificity the hours of the job offer or the exact date on which it was made at a hearing held two months after the fact calls into question her testimony that she was under the impression the assignment would last all day, particularly in the absence of any competent evidence in rebuttal. With respect to the administrative law judge's belief that the employe did not tell the employer about her appointment, the commission notes that the employer's written documentation relating to the conversation amounted to mere hearsay, and the absence of such a notation on the employer's hearsay document does not refute the employe's sworn firsthand testimony to the contrary. Finally, the commission sees no basis for doubting the employe's testimony that it would have taken her 45 minutes to an hour each way by bus to her appointment, as there is nothing inherently incredible about this statement, and which stood unrebutted. Moreover, even if the employe's appointment would have taken her only a few minutes, it would nonetheless have provided her with good cause to refuse the offer of work where she was led to believe she would not be able to take time off to attend it.

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