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

FRANK J HEIN, Employee

EXPEDITED FREIGHT SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402436SH


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The employer's request for further hearing is denied. The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2005, if otherwise qualified.

Dated and mailed November 18, 2005
heinfra . usd : 115 : 1  MC 626

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked six years as a "house driver" for the employer, a trucking company. House drivers were assigned to perform driving duties for particular clients of the employer.

The employee reported to a new assignment on February 14, 2005. On February 16, he contacted the employer's dispatch with a concern that a load he was to transport was not properly secured. Co-owner Dave Reynolds took the call. The employee testified that Reynolds told him to get on the road, he didn't pay him to do nothing, the employee was too old, and he had drivers who could do three times what the employee did. The employee then proceeded to drive the load. The employee further testified that, when he was halfway to his destination, Reynolds called him; told him, "I am sending a replacement driver. You're gone. I want you out of my life;" and told him where to park the truck. The employee's testimony in this regard was unrebutted by competent evidence.

Later on February 16, Jay Sakwinski, the employer's safety director, spoke to the employee. When the employee told him that he had been fired, Sakwinski told him several times during their conversation on February 16, and again during a conversation on February 18, that he had not been fired. The employee did not perform services for the employer after February 16.

The facts in this case are similar to those in Zingale v. Sundance Photo, Inc., UI Hearing No. 04605830WB (LIRC March 11, 2005) in which the employee was told by the employer's president to "get out of here" during a meeting to discuss the employee's alleged theft of gasoline. Later in this meeting, the employer offered the employee a chance to return to work a few days later and to prove his innocence, but the employee declined this offer. The commission held that, since the employee did not accept the employer's retraction of the discharge, there was no quit and the separation remained a discharge.

The facts are actually somewhat more compelling here. The language used by the employer to the effect that the employee was "gone" and Reynolds wanted him out of his life, more clearly communicates a discharge than the language in Zingale to the effect that the employee should "get out of here." In addition, the attempted retraction here did not occur during the original discussion but in a later discussion with a different agent of the employer.

As a result, consistent with Zingale, supra., the separation here was a discharge. Given the facts of record, i.e., that Reynolds was upset with the employee because he reported a safety concern, it would have to be concluded that the employer did not prove misconduct.

In its petition for commission review, the employer requests further hearing to provide an opportunity for Reynolds to testify. The employer bases this request on its belief prior to hearing, given the department determination, that only the matter of whether the distance from the employee's home to his new assignment provided good cause for his quitting would be at issue.

However, the employee has maintained throughout these proceedings that Reynolds fired him during their February 16 conversation, and the Claimant Statement generated during the adjudication stage, which would have been available to the employer, reflects that. Moreover, the notice of hearing states that the issue of whether the separation was a quitting or a discharge for misconduct "may be covered" during the hearing.

As a result, the employer had reason prior to hearing to be aware that evidence as to the employee's conversation with Reynolds on February 16 could be relevant to the matters in dispute and, as a result, no further hearing to permit Reynolds to testify is merited.



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uploaded 2005/11/22