KALLIN F JANZEN, Employee

ROEHL TRANSPORT INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter finding that the employee's separation from his employment with the employer was a discharge rather than a voluntary termination, and that the discharge was not for misconduct, with the result that the employee was eligible for benefits if otherwise qualified. A timely petition for review was filed. The commission subsequently reversed the decision of the ALJ and decided that the employee had voluntarily terminated his employment, not for any reason constituting an exception to the disqualifying effect of a voluntary termination, and was therefore ineligible for benefits unless and until he requalified.

The employee commenced a proceeding for judicial review of the commission's decision. On January 7, 2003 the Circuit Court for Marquette County, the Honorable Richard O. Wright presiding, issued an Order which reversed the decision of the commission and remanded the matter to the commission for further proceedings consistent with the court's decision.

Pursuant to the court's Order, and based on the record previously made in the hearing before the ALJ, the commission now makes the following:

The employee worked two years as an over-the-road truck driver for the employer, a trucking business. He last actually worked for the employer on November 19, 2001 (week 47), when a route he was driving ended. As of the end of the route, the employee was next scheduled to return to work on November 25.

On November 13, the employee had begun experiencing problems with his teeth. He contacted his dentist, who advised him that he had an impacted wisdom tooth that was going to have to come out and referred him to an oral surgeon. The first day on which the surgeon could see him was Friday, November 23. On that day, the employee underwent oral surgery to remove the impacted wisdom tooth.

The employee contacted the employer's driver manager by telephone on November 23, calling from the surgeon's office after the extraction procedure, to tell him that he would not be able to return to work as scheduled on November 25. The employee also arranged to have a medical excuse faxed to the employer. The medical excuse covered absence through November 26.

The employee and the driver manager then talked by telephone again, on November 26. In their conversation on November 26, the employee told the driver manager that he wanted to be excused from working for the rest of that week because he believed that it was not safe for him to drive due to the side effects of the pain medication that he was taking for the pain caused by the oral surgery. The employee said that he would return to work December 8. The employee normally worked for the employer on a "seven days on / seven days off" schedule. His indication that he would return December 8 reflected his understanding that it would be the start of his next "on" week after that week, given his usual schedule.

The driver manager told the employee that if he wanted to be excused from work after November 26, he would need a medical excuse extending beyond that date, or the employer would have to consider him available for work. The employee indicated to him that he was unwilling to do so, and he stated that he was not going to be available to drive until December 8 because he felt, in his opinion, that he was not safe to drive.

The driver manager asserted that in their telephone conversation on November 26, he asked the employee to call him back before the close of business on that day, and that the employee did not do so. He also asserted that on November 27 he left a message on the employee's answering machine asking him to call him by the close of business on that day, and that the employee did not do so. The employee asserted that he did not recall receiving that message.

After the telephone conversation with the driver manager on November 26, the employee did contact his doctor again, and the doctor mailed the employee a further medical excuse which the employee received on November 29. This medical excuse explained that the employee could return to work but that the pain medication given to the employee in connection with the surgery made him drowsy. The employee also contacted a person who worked in Roehl's insurance department and discussed with her the pain medication he was on.

The employee did not provide the second medical excuse he received on November 29 to the employer, because he was planning to deal with it when he contacted the employer on December 7. The employee intended to contact the employer again on December 7 because he intended to return to work on December 8, and it was the regular practice at Roehl that a message with trip dispatch information would be left on a driver's voice mail before they were scheduled to start a route, which the driver would then check the day before the scheduled route was to start.

The employee did in fact contact the employer on December 7, initially attempting to access his company voice mail. He found at that time that his voice mail was not working. When he contacted the employer to ask why, he was informed that due to his failure to report to work he was no longer an employee of the company.

The issues presented in this case concern the nature of the separation and the eligibility of the employee for benefits considering the nature of the separation.

The statutory concept of voluntary termination is not limited to the situation of an employee who says "I quit", and may encompass a situation where the employer has discharged the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980).

The established test for whether an employe leaves employment voluntarily, is whether the employe "shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the continuation of the employee-employer relationship." Nottelson v. ILHR Department, 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). An employe should be found to have terminated his own employment within the meaning of Wis. Stat. § 108.04(7), when the employe shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employer/employe relationship. Dentici v. Industrial Comm., 264 Wis. 181, 186, 58 N.W.2d 717 (1953), Fish & White Equipment Sales & Service, 64 Wis. 2d 737, 745, 221 N.W.2d 864 (1974), Hanmer v. DILHR, 92 Wis. 2d 90, 94, 284 N.W.2d 587 (1979).

Roedl v. John Deere Horicon Works (LIRC, September 5, 1997).

In Dentici, the court made it clear that the reason a separation arising as a discharge can in some cases be treated as a voluntary quitting, is that in such cases the evidence shows that the employee intended to quit. The court said:

Here it must be held that there was a voluntary termination of employment by the employee, because the evidence shows that by his acts he intended to leave his employment rather than accept a transfer.

Dentici, 264 Wis. at 186. The same approach was taken in Nottelson:

[w]hen an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship, it must be held, as the Industrial Commission determined here, that the employee intended and did leave his employment voluntarily and by refusing to accept the transfer left without good cause attributable to the employer.

Nottelson, 94 Wis. 2d at 119. The court specifically addressed the question of intent, stating "the record was clear that the claimant did not want to quit his employment", and it held that the employe had not quit. 94 Wis. 2d at 112.

The same approach was also taken in Holy Name School v. DILHR, 109 Wis. 2d 381, 326 N.W.2d 121 (Ct. App., 1982), another case involving the issue of whether a separation which was initiated by the employer could be deemed a voluntary quitting by the employee under the rule of Dentici. Quoting and discussing the meaning of the Dentici rule, the court held in Holy Name School that

determination of whether there has been a voluntary termination is therefore dependent on findings of fact concerning an employe's conduct and intent.

109 Wis. 2d at 388. In Holy Name School, the court specifically addressed the question of the employee's intent, stating that there was credible and substantial evidence supporting the finding that the employee "intended to preserve the employment relationship and did not intend to leave her employment". 109 Wis. 2d at 388-89. The court held that the employee had not quit. Ibid.

As the court noted in Holy Name School, questions concerning an employe's intent are questions of fact. 109 Wis. 2d at 386. It is evident that the analysis contemplated by cases such as Dentici, Nottelson and Holy Name School is one in which a (factual) inference about the employee's intent vis-à-vis the continuation of their employment, is drawn from the evidence as to their conduct. The finding as to the employee's intent is then looked to in order to decide whether to characterize the separation as a quitting or as a discharge.

Consistent with the approach taken by these decisions, the commission has repeatedly held that where there is a question of whether a discharge should be considered to have been equivalent to a quitting, the key element to determining whether the employe should be found to have quit is the employe's intent. Wuske v. L & W Trucking (LIRC, March 4, 1998); Zylka v. U. S. Postal Service (LIRC, April 16, 1999); Meier v. Monona Catering LLC (LIRC, April 4, 2000), Zeciri v. Vista Intl. Packaging Inc. (LIRC, February 22, 2001). The circumstances of the case must be examined to determine whether they show an intent by the employe to sever the employment relationship. Hall v. Cornwell Personnel Associates (LIRC, December 16, 1994); Jackson v. Cornwell Personnel Associates (LIRC, February 20, 1998); Cunningham v. P. A. Staffing Service (LIRC, April 17, 1998); Dauden v. P. A. Staffing Service (LIRC, August 28, 1998). In deciding such "quit or discharge" questions, "[u]nder the standard noted in [Nottelson and Dentici], the commission looks to see whether an employee intends to leave his or her employment as evidenced by word or manner of actions or by conduct inconsistent with the continuation of the employee-employer relationship". Neville v. Ameri King Burger King (LIRC, September 14, 2001).

The commission notes that while the driver manager had expressed some expectations to the employee about his either returning to work or providing a medical excuse to extend his absence, and while the employee had made a statement to him about being unwilling to provide a further medical excuse, the employee had also told the driver manager that he did intend to report back to work, on December 8.

The driver manager never told the employee that if he did not either report back to work by a certain date or submit an additional medical excuse, he would be discharged or would be considered to have quit. The driver manager also never told the employee that if he did not return the driver manager's calls, he would be discharged or would be considered to have quit. Therefore, the employee's failure to do these things provides no particular reason to infer an intent to quit.

On the other hand, the employee's statement that he intended to return to work on December 8, his conduct in subsequently obtaining a further medical excuse, and his conduct in then contacting the employer on December 7 as part of a normal process for resuming work and starting a scheduled route, all support the inference that until he was advised by the employer that his employment was at an end, the employee believed that he would continue as an employee and was intending to return to work.

The commission also notes that the ALJ, who had the opportunity to observe the witnesses while they testified, made an express finding in his decision in this matter, that the employee did not intend to quit.

The commission finds that the employee in this case did not intend to quit his employment. His conduct was not inconsistent with an intent to continue his employment; it was instead consistent with the existence of such an intent. The employee therefore did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.09(7)(a), but was instead discharged by the employer.

Because of the decision that the employee did not voluntarily terminate his employment but was instead discharged, it becomes necessary to address the issue of whether the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.09(5).

The conduct which the employee engaged in which could be argued to constitute misconduct, was his failure to either return to work immediately after November 26 or provide the employer with a medical excuse covering days after November 26. Additionally, it could be argued that his failure to return calls as requested by the driver manager on November 26 and 27 was misconduct.

"[T]he intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 259-60, 296 N.W. 636 (1941).

In misconduct cases, the "crucial question" is the employee's intent or attitude which attended his act which is alleged to be misconduct. Cheese v. Industrial Comm., 21 Wis. 2d 8, 14, 123 N.W.2d 553 (1963). The commission finds that the employee's decision not to return to work immediately after November 26 was motivated by a genuine concern that it would not be safe for him to drive a truck that soon after his surgery and during his recovery, considering the condition he was in. When he began his employment at Roehl, the employee had been given training which promoted the idea that a professional driver should mentally inventory his fitness to drive before going out on a route. On November 26, when the employee spoke to his driver manager, he was still under the effects of the surgery on November 23, with stitches still in his mouth, still in pain, unable to open his jaw more than a little, and not feeling well. He had been taking a prescribed pain medication, Hydrocodone, which came with a "do not drive" warning that it could make him drowsy, and which did in fact make him drowsy. He was aware that the policy book for Roehl's drivers stated that "no driver shall operate a motor vehicle, and Roehl Transport, Incorporated shall not require or permit a driver to operate a motor vehicle while the driver's ability is so impaired or so likely to become impaired through fatigue, illness or any other cause as to make it unsafe for the driver to begin or continue to operate the motor vehicle". It was his understanding that he had a right and a responsibility to disqualify himself from driving if he felt that he was unfit. This understanding was reasonable, and the employee's genuinely-held belief that it would be unsafe for him to drive was also reasonable. Roehl's driver manager testified that if a truck driver had come to him and told him that he was taking a pain medication that made him drowsy, he would absolutely not permit that driver to get in a truck and drive it.

The commission also notes that the ALJ, who had the opportunity to observe the witnesses while they testified, informed the commission in a consultation held with him concerning his impressions as to witness demeanor and credibility, that he believed that the employee genuinely felt that he should not drive.

The employee's statement to the driver manager about being unwilling to provide a further medical excuse, and his failure to provide one to the employer before he was terminated, were plainly unsatisfactory to the employer, but there are circumstances disclosed in the record that serve to mitigate and explain this conduct to some extent. On November 26, when he was talking about the situation with the driver manager, the employee was still in pain from the effects of his surgery, unable to open his mouth far, and consequently having trouble speaking. He felt frustrated by the demand for further paperwork when it was not in dispute that he had indeed had the surgery and was still in recovery and feeling its effects. These things may have contributed to his response. Significantly, although he may have intemperately said something to the driver manager to the effect that he was "unwilling" to provide a further medical excuse, he did in fact contact his doctor after the call and arrange to have a further medical excuse provided, which he obtained and planned to provide to the employer when he returned to work.

While the employer had an interest in obtaining such documentation, the commission does not believe that this was such an important interest on the part of the employer, or that the employee's disregard of it was so unreasonable, as to satisfy the standard for misconduct. It was undisputed that the employee had, as already-submitted paperwork had established, just undergone oral surgery which resulted in an inability to work for several days. The employer would have had no particular reason, on November 26, to question the truthfulness of the report the employee made to it on that day concerning his condition at that time, just 3 days out from that oral surgery. Indeed, the employer has never asserted, that it had any particular reason to doubt the information the employee provided on November 26 about his condition and his ability to drive safely in that condition. The employee was keeping the employer informed of his condition and of his intended return-to-work date. The employee was also not attempting to claim any sort of sick pay from the employer for this period of absence. It is thus difficult to understand why an employer would have considered it a dischargeable offense for the employee to fail to immediately submit further medical documentation concerning his condition. In addition, if submission of a further medical excuse was considered of sufficient importance that the failure to submit it would be serious enough to warrant discharge, one would expect the employer to have communicated this to the employee, as a way of inducing him to satisfy the requirement. However, it was not. A reasonable inference from this, is that failure to submit the further medical excuse was not considered that serious a matter by the employer.

The employee's failure to call the driver manager back on November 26 and November 27 after the driver manager asked him to was less than satisfactory conduct on his part, but here too there are circumstances that make it difficult to view these failures as so serious as to warrant a conclusion of misconduct. The driver manager did not explain why he requested the employee to contact him again after they had already spoken on November 26, and he did not explain why he requested the employee to contact him again on November 27, so there is no basis on which to conclude that his reasons were so significant that the employee's failure to respond could be seen as equally significant. The employee's condition, in particular his difficulty in speaking, may have contributed to a reluctance to engage in another telephone call with the driver manager. It is also not clear that the employee ever received the message left on his answering machine.

Considering the particular circumstances here, the commission does not believe that the employee's acts and omissions were "conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer". Conduct may be so unsatisfactory to an employer that it justifies discharge, but still not amount to misconduct. The misconduct provision is to be given a construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision. Boynton Cab Co., 237 Wis. at 259. The commission is not satisfied, that the conduct here was of the type that was clearly intended to be subject to the misconduct provision.

The commission therefore finds that in week 48 of 2000, the employe was discharged and that his discharge was not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2001, if he is otherwise qualified.

Dated and mailed January 31, 2003
janzeka . urr : 110 : MC 626  VL 1007.01  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney Thomas B. Sewall
Attorney Richard W. Pins

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/02/10        constructive quit