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


GERALD J WUSKE, Employe

L & W TRUCKING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97401067AP


On April 4, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 5 of 1997 the employe quit his employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On May 30, 1997, the appeal tribunal issued a decision which amended and affirmed the initial determination to find that the employe quit without good cause in week 6 of 1997. As a result, benefits were denied. The employe filed a petition for commission review of the appeal tribunal decision.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Timeliness of Petition

Wis. Stat. § 108.09(6)(a), requires that a petition for review be received by the department or commission or postmarked within 21 days after a copy of the appeal tribunal decision was mailed to a party. Because the appeal tribunal decision in this case was issued on May 30, 1997, the last day to file a timely petition was June 20, 1997. The employe's petition for commission review was postmarked on July 1, 1997, and received on July 3, 1997. Consequently, the petition was untimely.

The commission must dismiss an untimely petition unless the party filing the petition shows probable good cause that the petition was late for a reason beyond the party's control. Wis. Stat. § 108.09(6)(a). The employe explained that his petition was late because, although it was mailed in a timely fashion and properly addressed, he received it back from the United States Postal Service subsequent to the appeal deadline stamped "no such number." The employe then remailed the petition, which by now was untimely.

In support of his assertions, the employe submitted the envelope in which his petition was originally mailed, which is addressed to the Fox Valley Hearing Office and bears a June 20, 1997 postmark. A close inspection of the envelope reveals that the employe originally wrote the incorrect street number on the envelope, but then corrected his mistake by writing the correct number over the incorrect one with darker ink. The corrected address is sufficiently clear that the employe could reasonably have expected it to be delivered to the addressee, and the commission believes that the United States Postal Service's failure to deliver the envelope was a matter over which the employe had no control.

The commission, therefore, finds that the employe failed to file a timely petition for commission review, but that such failure was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(6)(a). Accordingly, the commission will proceed to review the merits of the case.

Separation from Employment

The employe worked for the employer, a trucking business, as a driver. His last day of work was Friday, January 31, 1997.

On his last day of work the employe had two or more telephone conversations with the employer's owner, during which the employe was chastised for reporting to work late. At some point the employer asked the employe whether he liked his job and advised him that, if so, he needed to do something to protect it. Specifically, the employe was told that he needed to be on time and to keep the employer's equipment clean. The employer also mentioned that there were other drivers and that the employe could be replaced. The employe responded that if the employer did not like what he was doing he could get someone else to drive its truck.

The following day the employer instructed another worker to clean out the employe's truck. However, the employer did not consider the employment relationship to have ended at this point, and was willing to have the employe continue working for it.

On Saturday evening the employe's two children were hospitalized with viral pneumonia. At the same time the employe checked into the hospital with stomach problems, for which he was scheduled to undergo medical tests the following Monday.

The employe's wife called the employer's owner at home on Sunday morning and left a message with his daughter explaining the employe's situation, but the message was not relayed to the employer. Later that day the employe called the employer's owner and informed him that he was in the hospital with his kids. During the course of this conversation, the owner told the employe he was upset about the filthy condition in which the employe had left his truck and stated that the employe should come over that evening to get his paycheck and personal belongings and to talk things over. The employer did not notify the employe at this time that it wanted him to drive a load to Madison on Monday, nor did the employe mention that he would be unable to work on Monday because he was scheduled for medical tests.

The employe stayed at the hospital until after midnight on Sunday because his youngest child's condition had worsened. Consequently, the employe was unable to report to the employer's home that evening. The employe neglected to call the owner to tell him he would be unable to make the meeting and, when the employer did not hear from the employe, it assumed the employe would not be at work on Monday. The employer's owner and his wife therefore made arrangements to cover the employe's route themselves. They left for Madison on Sunday night and did not return until Thursday.

The employe telephoned the employer's owner on Monday and again on Tuesday, but was unable to reach him. Although the employe left messages on the employer's answering machine, which the employer's owner received when he returned to town on Thursday, the employer never returned the calls.

The question to decide is whether the employe quit or was discharged and whether he is eligible for benefits based upon that separation from employment.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963). The commission does not believe that the evidence supports a finding that the employe voluntarily quit in this case.

During a heated discussion on Friday, January 31, the employe's last day of work, the employe stated that if the employer was not happy with him it could find a replacement. However, the employe did not tell the employer he was quitting and did not intend to quit. Although the employer cleaned out the employe's truck the following day, it did not consider the employe to have quit at that time and expected him to drive a load to Madison the following Monday.

The employe's next contact with the employer was a telephone call from the hospital on Sunday, February 2, in order to report on his status and to check in. The employe's actions in this regard were clearly taken in furtherance of the employment relationship. While the employe may have demonstrated poor judgment in failing to inform the employer that he would be unable to work on the following Monday and, subsequently, of his inability to attend the meeting on Sunday evening, his failures in this respect are mitigated by the fact that he was unaware the employer expected him to drive to Madison on Monday and by the exigent personal circumstances occurring in his life at that time. Moreover, a single failure to provide advance notice of an absence or to attend an informal meeting with the employer is not conduct so inconsistent with a continuing employment relationship as to amount to a voluntary quit.

Indeed, the employer does not contend that the employe quit based upon any of his conduct discussed above, but asserts instead that it assumed the employe had quit when he failed to report for work on Monday. However, the employer made other arrangements to cover the employe's route on Sunday night without giving the employe an opportunity to report for work on Monday and, although the employe attempted to contact the employer on Monday, as well as the following day, the employer deliberately failed to return his telephone calls. Under all of the circumstances, the commission concludes that the employe did not intend to quit and that it was the employer's actions in week 6 which resulted in the termination of his employment.

Having concluded that the employe was discharged, a secondary issue to resolve is whether the discharge was for misconduct connected with his employment. The employer has not asserted that the employe was discharged because of misconduct, and the record contains no evidence to support such a finding.

The commission therefore finds that in week 6 of 1997 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 6 of 1997, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: March 4, 1998
wuskege.urr:164:1 MC 626 VL 1007

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

 

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that the employer's memory was fuzzy with respect to dates and that the employer simply kept asserting that the employe quit. The administrative law judge indicated that she found credible the employe's testimony that he called the employer on Sunday afternoon to check in and was told to come over to the employer's house to talk about things, but that she found much of the employe's wife's testimony to be self- serving. The commission agrees with these assessments of witness credibility, and its reversal is the result of a different interpretation of the law when applied to essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY JOHN S BARTHOLOMEW
BARTHOLOMEW & GREENHILL

ATTORNEY CAL R TILLISCH
BYRNE GOYKE OLSEN & TILLISCH


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