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

PETER J MAYER, Employee

HOOVER WELL DRILLING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604770RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three years, most recently as a well driller, for the employer, a drilling company. His last day of work was April 15, 2003, and he voluntarily terminated his employment on April 24, 2003 (week 17).

The employee notified the owner via telephone that he sustained his second work injury. The owner replied, "Go fucking screw yourself." The owner then hung up the telephone on the employee. The employee called back following another doctor's appointment and the employer again hung up on the employee. When the employee went to work on April 24, 2002, he told the owner that he didn't appreciate being sworn at and hung up on. The employer replied, in a raised voice and using a few choice words, that he did not care what the employee thought. The employee then left the workplace and thereby quit his employment.

The issue to be decided is whether the employee voluntarily terminated his employment with good cause attributable to the employer. Good cause will be found if the quitting was occasioned by some act or omission on the part of the employer which gave the employee a real and substantial reason to become unemployed rather than to continue working. Kessler v. Industrial Commission, 27 Wis. 2d 398 (1965).

The commission finds that the employer's conduct gave the employee a real and substantial reason for terminating his employment. The employer's conduct was unprovoked, rude, and callous. No employee should have to tolerate such abuse and hostility, particularly when it is in response to an employee's attempt to apprise the employer of a work-related injury.

The commission therefore finds that in week 17 of 2003, the employee voluntarily terminated his employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2003, if he is otherwise qualified.

Dated and mailed December 23, 2003
mayerpe . urr : 132 : 1 : VL 1005.01  VL 1080.20

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing. The ALJ indicated that he believed both the employee and employer relayed what they believed occurred prior to the separation. The commission reverses the ALJ because it disagrees with his conclusion that the employer's conduct toward the employee did not provide the employee with good cause attributable to the employer for quitting.


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uploaded 2003/12/29