BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

THOMAS B. HARYCKI, Employee

WIEDEMEYER SERVICE CENTER, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-603649


The Department issued an Initial Determination on April 27, 1991, which held that the employe quit his work with good cause attributable to the employer. The employer timely requested a hearing on the adverse determination, and hearing was held on May 31, 1991 in West Bend, Wisconsin before Administrative Law Judge Charles R. Lund. On June 7, 1991, Administrative Law Judge Lund issued an Appeal Tribunal Decision reversing the Initial Determination, and holding that the employe's quit was not with good cause attributable to the employer. The employe timely petitioned for Commission review of the adverse Appeal Tribunal Decision, and the matter is now ready for disposition.

Based on the applicable law, records, and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 20 months as a dispatcher for the employer, a trucking company. He quit his employment on April 17, 1991 (week 16), because his April 5 paycheck had been returned unpaid (due to insufficient funds) from his employer's bank to his credit union. Under the circumstances of this case, the Commission believes the employe had good cause attributable to the employer to quit his employment, and so reverses the Appeal Tribunal Decision.

Employes were paid every Friday, for work performed in the previous week. On Friday, April 5, the employe received his paycheck and deposited it. On April 12, the employe's credit union informed him that his April 5 paycheck had been returned unpaid from the employer's bank. The notice also indicated that, as of the 12th, there still were insufficient funds in the employer's account to cover the April 5 check to the employe. The employe spoke by telephone with the owner's son (also a dispatcher) on April 15, at which time the employe informed him of the problem with the paycheck.

The employe was out of the area on April 15 and 16. He returned to the workplace early on April 17, inquiring about the status of his April 5 paycheck. The manager told the employe to wait until the manager's son arrived, and to discuss the matter with him. The employe quit his employment at this time. The employe's April 5 paycheck was made good later on April 17.

An isolated failure by an employer, and where due to inadvertence or mistake, in issuing a payroll check for which there are insufficient funds to pay it, will not give an employe good cause to quit his or her employment. This case is different, however, because there were additional instances in which the employe's payroll checks had been returned to his credit union unpaid. The employe's November 30, 1991 and March 8, 1991 paychecks also had been returned to his credit union because of insufficient funds in the employer's accounts. The record also indicates that another employe's April 5 paycheck was initially not paid. Although the employe was unaware of these incidents, they are still relevant for the purpose of determining whether the employer's failure was an isolated incident or, as appears to be the case here, a pattern of recurring failures.

The Appeal Tribunal held that the inconvenience the employe experienced in obtaining payment for his April 5 paycheck was not such a valid or substantial reason for quitting as to amount to good cause attributable to the employer. It is true that the actual harm the employe suffered may not have been great. The potential for harm, however, was substantial. The employe himself could have unknowingly written checks for which there were insufficient funds, as a result of the employer's failures, and thus have been subject to overdraft charges by his credit union and charges from entities to which he himself wrote personal checks. That none of theses circumstances actually came to pass was only fortuitous, and does not lessen the seriousness of the employer's failures. Employes simply must be able to trust their employers to timely satisfy their payroll obligations. For these reasons, the Commission believes the employe's April 17, 1991 (week 16) quit of his employment was with good cause attributable to the employing unit within the meaning of section 108.04(7)(b) of the Statutes, and so finds.

DECISION

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

Dated and mailed August 26, 1991
105 : CD0287  VL 1059.07

/s/ Kevin C. Potter, Chairman

/s/ Richard T. Kreul, Commissioner


NOTE: As indicated above, the Commission consulted with the Administrative Law Judge as to his impressions of credibility. The Administrative Law Judge believed that the employe's quit was due to the paycheck incident and not solely to an argument the manager had with the employe's father (as the employer had alleged). The Appeal Tribunal simply did not believe sufficient harm came to the employe to give him good cause to quit the employment. As noted above, the Commission believes the potential harm to the employe should also have been considered. Since the Commission's assessment of credibility is not inconsistent with that of the Appeal Tribunal, the Commission's reversal of the Appeal Tribunal is as a matter of law.

 

PAMELA I. ANDERSON, COMMISSIONER, (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

I agree with the Administrative Law Judge that we can only consider the problem with the paycheck for April 5 because the employe had no knowledge of any other problems until after he quit and so the other dates could not have played a part in his quit. The reverse of the situation is a case where an employer fires an employe for poor workmanship where the employe was never able to do the job and later that day finds out the employe was stealing from the employer or selling drugs on company property during work hours. The Commission has consistently held that the employer cannot add reasons after the firing that would establish misconduct. In this case, the majority is allowing the employe to add to the case after the decision to quit was made.

For these reasons, I would accept the findings of fact and conclusions of law of the Administrative Law Judge as my own and affirm.

Pamela I. Anderson, Commissioner


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