BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

RAYMOND J. BROWER, Employee

CAL-INLAND INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-201279 EC


The Department issued an Initial Determination on November 22, 1989, which held the employe's discharge was not for misconduct connected with his employment. The employer timely requested a hearing on the determination, and hearing was held on January 8, 1990 in Eau Claire, Wisconsin, before Administrative Law Judge Theresa M. Larson. Administrative Law Judge Larson issued an Appeal Tribunal Decision on January 12, 1990, reversing the Initial Determination and holding that the employe's discharge was for misconduct connected with his employment. The employe timely petitioned for Commission review, and the matter now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as an over-the-road truck driver for the employer, a trucking firm. The employer discharged the employe when, following a major accident in which the employe was at fault, the employer's insurer would no longer insure the employe as a driver for the employer. The issue is whether the employe was discharged for misconduct connected with his employment. The Commission believes he was not.

The employe began driving for the employer in 1983.  In September of 1984 or 1985, the employe was driving in or near Jordan, Mississippi when he fell asleep and drove off the road, causing approximately $50,000 damage to his rig.

The employe's second accident, and the one precipitating the employe's discharge., was in October of 1989. The employe went around a curve too fast, causing his rig to overturn. The employer testified that the curve was posted at 45 miles per hour, and that the in-truck computer indicated the employe was going approximately 63 miles per hour. The employe testified he had not been paying attention, and did not realize either that he was going that fast or that the corner was posted at 45 miles per hour. This accident also caused approximately $50,000 in damage.

The last work the employe performed for the employer was the employe's return of the damaged truck to the workplace, on October 20 or 21, 1989. He was not discharged at this time, however; the employer told the employe he (employer) would have to check with the insurance company to see whether the employe could still be insured. The employer discharged the employe approximately one week later, after review of the employe's driving record by the employer's insurer. The employer told the employe the reason for the discharge was that the insurance company would not insure the employe at that time. The employer testified, finally, there was a good chance the employer would have kept the employe employed had the insurance company continued to cover him.

The timing of the employer's discharge of the employe and the employer's testimony at hearing make it clear that the employer did not discharge the employe for the two accidents, but rather because of the insurer's refusal to continue insurance coverage on the employe. This is not misconduct, however. The Commission therefore finds that the employe's discharge was not for misconduct connected with his employment, within the meaning of section 108.04 (5) of the Statutes.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified.

Dated and mailed May 25, 1990
105 : CD0046   MC 662  MC 665.01

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


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