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

SHARON L WILHELM, Employe

NORTH CENTRAL LABORATORIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002223WU

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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked three years as a utility worker for a laboratory supply warehouse. Her last day of work was May 3, 1999 (week 19).

Beginning in November of 1998 the employe began working part-time for the employer due to restrictions following surgery for cancer, treatment, and reconstructive surgery. She returned to work at the same position under a reduced schedule and with restrictions.

After the employe returned to work she discovered that her immediate supervisor, a chemist in the building where she worked, had not been washing bottles that had been part of the employe's customary duties. She had an ongoing dispute about washing these bottles because of a hereditary condition which caused her hands to become cracked and sore. She took this issue to the employer's owners, and after that was ignored by her supervisor. Shortly thereafter her immediate supervisor requested that she be transferred to a different building, and the employe became upset about this proposed transfer. She made inquiries of the employer's president about why this transfer was necessary, and was not given any substantial response. She was advised to contact her immediate supervisor. When she contacted her immediate supervisor her supervisor denied having any input in the decision to transfer her. After reporting this to the employer's president she was instructed that she could start the new position if she wrote a letter of apology to both the president and her immediate supervisor for remarks made during the transfer talks. The employe failed to do this and the employment relationship ended.

The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

It is clear that the employe's failure to write letters of apology as requested by her employer was the cause of the employment separation and this must be deemed a voluntary separation. Although the employe assumed that she was being discriminated against because of her cancer, based upon the evidence she produced at the hearing her supervisor requested this transfer because the employe had reported the bottle washing issue to the employer's upper management. When her inquiries as to why this was occurring did not provide her with any answers, it heightened her feeling that there was discrimination involved. When she was ordered to write a letter of apology she considered that inappropriate based upon her perceptions.

The remaining issue is whether she had good cause for her quitting. "Good cause attributable to the employing unit" means some act or omission by the employer justifying the employe's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

The commission concludes that the employe did not have good cause in this case. The employer was within its prerogatives to transfer the employe based solely on the conflict with supervisor. The pay and hours were to remain the same and she would resume duties she had done in the past. Although this might have included dishwashing which the employe objected to, this objection does not justify her quitting. Therefore, the transfer to new duties by itself does not give the employe good cause. Neither can the commission conclude that the employer's omission of a complete explanation for its decision give the employe good cause. The employer's behavior did not justify the employe in quitting based solely on her unfounded perceptions that she was being discriminated against. The employe may have made a reasonable decision to end her association with the employer due to perceived unfairness, but there is no evidence that real and substantial employer fault played any role in that decision.

The commission therefore finds that in week 19 of 1999, the employe terminated work with the employer but not within any exception to the statute permitting the immediate payment of benefits, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employe was paid benefits in weeks 19, 37 through 39, 44 through 52 of 1999 and weeks 1 through 8 of 2000, amounting to a total of $4,591; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1999, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $4,591 to the Unemployment Reserve Fund.

Dated and mailed February 28, 2000
willhes.urr : 178 : 5   VL 1080.268  VL 1080.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. The ALJ indicated that he had reservations about the employer's account of its reasons for transferring the employe to other duties. However, he did not believe that her cancer played any part in its decision. The commission has accepted the ALJ's facts but reaches a different legal conclusion. The commission does not find that either the employer's decision to transfer the employe nor its manner of informing her of it gave her good cause to quit.

cc: ATTORNEY J AARON BALL
TUCHSCHERER ECKERT SMITH & RANDOLPH

ATTORNEY JEFF SCOTT OLSON

Appealed to Circuit Court. Affirmed August 23, 2000. [Court decision summary]

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