In the matter of the unemployment benefit claim of

BYRON BUCKERIDGE, Employee

Involving the account of

MILWAUKEE PUBLIC SCHOOLS, Employer

A decision issued by an appeal tribunal of the Department of Industry, Labor and Human Relations held that in week 49 of 1978, the employe's employment was suspended because his license for teaching certification had not been renewed due to his own fault, within the meaning of section 108.04(1)(f) of the statutes. Accordingly, benefits were denied. On March 23, 1979, the employe filed a timely petition for Commission review of the appeal tribunal decision.

Based on the evidence, records and law applicable to this case, the Commission makes the following:

The employe worked in approximately four years as a reading teacher for the employer, a public school system. His last day of work was November 27, 1978 (week 48).

Throughout his employment with the employer, the employe did not have a teaching license which certified that he met the requirements of a legally qualified teacher. Such a license was unavailable to him, as he lacked various college courses, not the least of which was a course entitled, "Conservation of Natural Resources".  Twice during his employment the employer did obtain for him a permit pursuant to the terms of the Wisconsin Administrative Code Section PI 3.01 which states as follows:

"A permit is an instrument, limited in time to one year or fraction thereof and to one specific job, given to permit the employment of a person who does not meet the minimum legal requirements for teaching as stated in section 40.43(3), Wis. Stats. (118.19(2)) and section PI 3.03 (2), (3), (4), (5) and (6), Wis. Adm. Code. The permit is recognized as a substandard instrument given to an unqualified person."

There were occasions in his tenure when the employe was without a permit. Such was the case in the 1978-79 school year. He taught until November 27, 1978 (week 48), when he was dismissed because he did not have a teaching license.

Section 108.04(1)(f), Stats., provides:

"If an employee is required by law to have a license, issued by a governmental agency, to perform his customary work for an employer, the employee shall not be eligible for benefits from the employer's account while the employe's employment was suspended or terminated because his license has been suspended, revoked or not renewed due to his own fault, until he has a valid license to perform such work."

During his four years with the employer, the employe made no attempt whatsoever to fulfill the requirement for a regular teaching license. His failure to have such a license was clearly due to his own fault. However, as evidenced by section 108.04(1)(f), a disqualification results only if there is a suspension, revocation, or failure to renew a license. The mere failure to obtain the teaching license does not serve as the basis for disqualification. See Jt. #2 Pewaukee School District v. DILHR and Moore, Circuit Court Case No. 148-394, (August 9, 1976), cited in Wis. UC Digest-AA-130, Page 23.

The employe did have a temporary teaching permit, the non-renewal of which could fall within the intent of section 108.04(1)(f). However, it must first be shown that the temporary permit, as authorized by Wis. Adm. Code Section PI 3.01 was not renewed due to the employe's fault. Section PI 3.01(d) in noting the requirement for renewal of such a permit states as follows:

"No permit may be renewed unless there shall be a continued shortage of available satisfactorily recommended qualified teachers, and at least 6 semester hours of credit have been gained during the school year of the summer preceding the school year for which the permit is to be issued. These credits must be acceptable to the college at which the permit teacher is working toward her next diploma or degree."

In the past, the employer had renewed the employe's permit and assumedly must have been able to show that there was a continued shortage of, "available recommended qualified teachers."  The Commission is not aware how the showing that the employe obtained 6 semester hours of credit was made as the record is void of any evidence that he took any college courses while working for the employer. In any case, the employer did not attempt to obtain a permit for him for the 1978-79 school year. The employer did not appear at the hearing and no evidence was introduced to show why no such attempt was made.

An inference could certainly be drawn that the employer failed to obtain the permit for the employe because he had failed to make progress toward obtaining the proper certification as required by section PI 3.01(d). Given the employe's reluctance to cooperate in obtaining the necessary course work, such an inference would not be without merit. However, an equally reasonable inference would be that the employer failed to seek a renewal of the permit as it was unable to show a continued shortage of qualified teachers.

"The presumption is that the benefit claimant is eligible for unemployment benefits. The party resisting the payment of benefits has the burden of establishing that the case comes within one of the disqualifying provisions of the unemployment compensation law." Vocation. Tech. And Adult Ed. Dist. 13 v. ILHR Dept., 76 Wis. 2d 230, 246 (1976).

The Commission is of the opinion that the greater burden must be put on the employer. The employer did not appear to show why a temporary permit was not again sought for the employe. Lacking this information, the Commission is unable to find that the employe's failure to renew the temporary permit was necessarily due to his own fault.

The Commission therefore finds that in week 49 of 1978, the employe's employment was not suspended because his license or teaching certificate had not been renewed due to his own fault, within the meaning of section 108.04(1)(f) of the statutes.

The decision of the appeal tribunal is reversed. Accordingly, the employe is eligible for benefits, provided he is otherwise qualified.

Dated and mailed July 2, 1979
145 - 032   AA 130  BR 317   PC 714.03 

/s/ Virginia D. Hart, Chairman

/s/ John R. Hayon, Commissioner

/s/ LaVerne G. Ausman, Commissioner

COMM ENT: The Commission disagrees with the examiner's finding that the employe's failure to obtain a license or teaching certificate necessarily resulted in a denial of benefits. The proper issue is whether he failed to renew a license or teaching certificate due to his own fault. Faced with two possible inferences as to why the employer did not seek another renewal of his temporary permit, the Commission chose not to draw an inference in the employer's failure where the employer failed to appear at the hearing to introduce evidence in support of its position.

Appealed to Circuit Court.  Affirmed January 7, 1980. 

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