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


WILLIAM M HORNER, Applicant

HERFF JONES INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1995068738


An administrative law judge (ALJ) for the Worker's Compensation Division 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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: July 29, 1998
hornewi . wsd : 175 : 6  ND 7.26

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant failed to meet its burden of proof in establishing that the employer violated Wis. Stat. 102.35(3) in February 1995. The applicant contends that he proved his prima facia case and that the employer failed to establish that it had a reasonable cause to terminate the applicant.

The evidence indicates that the applicant was upset with the employer in 1994 over the changes the employer was making in its compensation program. The applicant had informed the employer that he was resigning due to his displeasure with the compensation program in a voice mail to his supervisor, Ms. Murphy, in December of 1994. The applicant followed up with a resignation letter on January 5, 1995 for a termination date of July 1, 1995. The applicant sent a letter rescinding his resignation in January 1995. Ms. Murphy sent the applicant a letter dated February 8, 1995 informing the applicant that his employment would be ended on February 20, 1995 due to the economic situation with Wisconsin schools and in view of his pending resignation Ms. Murphy had decided to close the Northern Wisconsin territory. Ms. Murphy cited the applicant's letter dated December 13, 1994 and his concerns over the expense of running the territory and the Wisconsin ceiling caps on budgets and the applicant's feeling that he couldn't make any money and concern with the funding situation. It is clear that the employer terminated the applicant's employment following his notice of resignation in January 1995. Ms. Murphy testified that the meeting she had with the applicant on February 3, 1995 was to move up the date of his resignation and prior to this meeting she had no information indicating that he did not want to resign. Ms. Murphy testified that she was concerned that the applicant's new job might be one with the employer's competitors and she wanted to establish business for the next year with her own sales people.

The commission agrees with the administrative law judge that the evidence indicates that the employer and the applicant were at odds with respect to various crucial employment issues such as remuneration, sales territory and changes in the compensation program. The applicant had indicated his displeasure with the employer's compensation arrangements and had resigned over his concerns, and then attempted to rescind his resignation. Under the circumstances the commission finds that the employer had reasonable cause to terminate the applicant in February 1995 based on Ms. Murphy's testimony and the letter to the applicant dated February 8, 1995. Also, the evidence did not indicate that the employer terminated the applicant due to his work injury. It was not established that the employer's reasons for moving up the applicant's resignation date and terminating the applicant was a pretense to discharge him due to his work related injuries. Therefore, it was not established that the employer unreasonably refused to rehire the applicant pursuant to Wis. Stat. 102. 35(3).

cc: ATTORNEY WILLIAM J DONARSKI
PARINS LAW FIRM SC

ATTORNEY NICK G KOTSONIS
CRIVELLO CARLSON MENTKOWSKI & STEEVES SC


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