STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES A JOHNSON, Employee

CROIX RIVER TRANSPORTATION, INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93200753EC


On March 19, 1993, the department issued an initial determination which held that the employe quit his employment but not for a reason allowing the immediate payment of unemployment benefits. The employe timely requested a hearing on the determination, and hearing was held before a department administrative law judge on June 28, 1993 in Eau Claire, Wisconsin. On July 15, 1993, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based on the applicable law and records and evidence in this case, and after consultation with the administrative law judge with regard to the credibility of witnesses, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 8 months as an over-the road driver for the employer, a trucking concern. He quit his employment after a two-week voluntary leave (from December 26, 1992 (week 52) to January 10, 1993 (week 3)), because of failures by the employer in timely paying the employe for work the employe performed for the employer. The commission believes the employe has established good cause for his quit (effective in week 3 of 1993, when he did not return to work for the employer), and so reverses the appeal tribunal decision.

In late May of 1992, the employer withheld the employe's entire paycheck for cargo damages the employer alleged the employe had caused. This action by the employer constituted a violation of sec. 103.455, Stats., which prohibits an employer from making deductions from an employe's wages for damage to property, unless the employe has authorized the employer in writing to do so or unless the employe or his representative essentially agrees that any such damage was the employe's fault. The purpose of this statute is to ensure that employes do not unfairly bear the employer's costs of operating a business. Erdman v. Jovoco. Inc., 1994 Wisc. LEXIS. 23 pp. 14-15 (March 3, 1994). The employer did not allege that any of the conditions necessary for withholding were present here. The consent of an employe may only serve as a basis for a deduction where it is given in writing after the loss has occurred and before the deduction is made. Donovan v. Schlesner, 72 Wis. 2d 74, 81, 240 N.W.2d 135 (1976). Although this incident occurred several months before the employe quit his employment, the incident which precipitated the employe's quit is analogous to this incident, such that the employe's quit was for a consistent and illegal course of conduct by the employer.

The employe was not the best with dates, so the following discussion is approximate. The employer's representative at hearing was no better, having no firsthand knowledge of the events underlying the employe's complaints. Employes were paid shortly after they would turn in their paperwork for a given assignment. The employe was paid November 23 or 24. He did not receive until January 11, 1993 the paychecks he should have received on December 7 and December 18, 1992. The employe had turned in on December l or 2, via Federal Express, the paperwork for the employer to be able to pay the employe on December 7, and on December 14 the paperwork for the employer to be able to pay the employe on December 18. The employe did not receive his paycheck, even though the employer had "cut" it. The employe contacted the dispatching company several times with regard to his check, and eventually was told that it had not been sent to the employe because the employe was missing some logs from September. Section 103.455 of the statutes also prohibits withholding of wages on account of faulty workmanship, which the commission believes includes the situation here. The employer essentially was withholding the employe's December wages because of work-related failures the employe allegedly committed in September.

An employe may quit his or her employment and still be immediately eligible for unemployment benefits, if the quit is with good cause attributable to the employe's employing unit. Sec. 108.04 (7)(b), Stats. Good cause attributable to the employer means an act or omission by the employer justifying the quitting, involving some "real and substantial" fault on the employer's part. See Farmers Mill of Athens v. ILHR Dept., 97 Wis. 2d 576, 582, 294 N.W.2d 39 (Ct. App. 1980). The employer's action of withholding the employe's December 7 paycheck for the employe's alleged bookkeeping failures in September meets this standard. In addition to depriving the employe of remuneration the employe had earned and reasonably expected to receive on December 7, the employer's action violated sec. 103.455, Stats. The commission therefore finds that the employe, in week 3 of 1993, quit his employment with good cause attributable to the employing unit, within the meaning of sec. 108.04 (7) (b), Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 3 of 1993, if he is otherwise qualified.

Dated and mailed May 26, 1994
105 : 00384   VL 1005.01 VL 1059.07

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge did not discredit the employe's claim that the employer had withheld the employe's December 7 paycheck, but attributed the employer's action to the employe's failure to have turned in the logs for which the December 7 paycheck would represent payment. The commission's review of the evidence indicates, instead, that the employe had timely turned in the logs for the December 7 paycheck and that the employer's withholding of that paycheck was for the alleged failures in September.

 


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