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

LOUIS C TOLVANEN, Employee

STAR ENTERPRISES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200781EC


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 for about two weeks as an over-the-road truck driver for the employer, a trucking company. His last day of work was December 19, 2002 (week 51).

The first issue to be decided is whether the employee quit his employment or was discharged.

The employee was hired by the employer, whose truck was then leased to J. L. Shandy, a transportation company in another state. The employee then hauled loads for J. L. Shandy but was to be paid by the employer. On December 20, 2002 (week 51), both the employer and the employee were notified by J. L. Shandy that the employee was no longer acceptable as a driver. Accordingly, the employer took the employee to ABI, another transportation company to have him drive loads for that business. However, the employee failed to follow through with this arrangement, and instead, began driving for another employing unit that also hauled loads for ABI. He did not report to work for the employer thereafter.

The employer contended that the employee quit his employment. The commission agrees. While the employee was no longer able to drive for Shandy, the employer took him to another company so that he could drive for them. The employee was never told he was discharged or terminated. It was the employee's decision to begin working for another employer that caused the separation. This decision constituted a quitting on his part effective the week ending December 28, 2002 (week 52).

The next issue to be decided is whether the employee's quitting was for good cause attributable to the employer or any other reason that would allow immediate benefit payment.

"Good cause attributable to the employing unit" means some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Nottelson v. DILHR, 94 Wis. 2d 106, 120, 287 N.W.2d 763 (1980) (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965), and Hanmer v. DILHR, 92 Wis. 2d 90, 98, 284 N.W.2d 587 (1979)). For the exception to apply, the quitting must be "occasioned by" the act or omission of the employer which constitutes good cause. Hanmer, 92 Wis. 2d at 98 (citing Kessler v. Industrial Comm., 27 Wis. 2d 398, 401, 134 N.W.2d 412 (1965)).

In this case, the employee quit because the employer was not paying social security payments and evidently did not carry worker's compensation insurance. The employee quit, in order to work for another company that would pay these obligations. The employee mentioned this to the employer and the employer informed him that he did not carry worker's compensation insurance because he was an out of state business. The employer's failure to timely make these required payments provided the employee with good cause attributable to the employer for terminating his employment, in week 52 of 2002, 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 as of week 52 of 2002, if otherwise qualified.

Dated and mailed January 21, 2004
tolvalo . urr : 145 : 8   VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not reverse the ALJ because of a different impression of witness credibility and demeanor. Rather the commission reverses the ALJ's decision because it reached a different legal conclusion from the facts found by the ALJ. The facts were, for the most part, not in dispute.


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