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

JAMES L BRESKE, Employee

TMS LOGISTICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602132MW


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 three months, most recently as an over-the-road truck driver, for the employer, a transportation business. His last day of work was on or about October 11, 2006 (week 41), when the employment relationship ended.

The initial issue is whether the employee quit or was discharged from his employment.

On October 10, 2006, the employee was driving one of the employer's trucks to Delaware. He was not feeling well and, when he stopped in northern Indiana, the employee called the employer to inform it he was too ill to continue the drive to Delaware. The employer asked the employee what his problem was. The employee informed the employer he was having trouble breathing and he was extremely tired. The employee asked if he could go to the home of a friend in Columbus who might be able to help him. The employer approved the detour but about two hours later the employer called him and instructed him to bring the truck back to the terminal. The employee asked the dispatcher what was going on but the dispatcher would not explain anything to the employee, the dispatcher merely repeated that he should bring the truck back. The employee did not get back to work until the next day. At that time he returned to the workplace and assuming that he had been instructed to bring the truck back because he was being discharged, the employee asked where the firing squad was. The dispatcher and the vice president of operations were both present but merely shrugged their shoulders and indicated it was out of their hands. The employee then asked if he was going to be fired, but both the dispatcher and the vice president ignored him. The employee waited at the front counter for about half an hour but the vice president of operations went about her business and did not talk to him. The employee was feeling more and more ill and finally asked what he should do and was instructed to turn in his gas card. The employee did not inform the employer that he was quitting and the employer did not tell the employee that he had been discharged. The employee was later diagnosed with congestive heart failure.

The employee argued that he had been discharged. The commission agrees. The employee reasonably deduced from the fact that the employee was instructed to return the truck before finishing the load that his employment might be in question. While it is possible that the employer may have taken this action because it was concerned for the employee's health, it never informed him of this concern, nor did it instruct him to seek treatment while he was on the road. At any rate, the employee reported back to work as instructed and the vice president and the dispatcher simply refused to talk to him. He asked if he was being discharged and the vice president failed to answer him. She did not instruct him to contact the president or any other member of management. Instead, she let him stand at the counter for about half an hour. When the employee indicated that he wanted to end the matter, he was not told that the employer would discuss the situation with him. Rather, he was instructed to turn in his keys. While it was the employee's responsibility to ascertain his employment status before assuming that he had been discharged, in this case, the employee attempted to do so, but the employer would not clarify the situation, despite the fact it knew the employee thought he had been discharged. Under the circumstances presented in this case, the employer was the moving party in ending the employment relationship, and as such, discharged the employee. The employer did not give any specific reason for discharging the employee. It was not established that the employee was discharged for misconduct connected with his work.

The commission therefore finds that in week 41 of 2006, the employee was discharged by the employer, but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2006, if otherwise qualified.
Dated and mailed July 23, 2007
breskja . urr : 145 : 1  VL 1007.01 MC 626

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ who indicated that this was a difficult case to resolve as the parties both made statements that were either illogical or inconsistent with their interests. The commission agrees with the ALJ's conclusion in this regard. The ALJ did indicate that he believed that the employee was truly sick. The commission found the employee credible when he testified that he did not intend to quit. The employee testified that he had congestive heart failure and had a motive to remain employed as he would soon be eligible for health insurance benefits. The employee had reason to suspect he was suffering from a serious health condition, and he would be likely to need health insurance. Had the employee stayed employed just a short while longer, he would also have been entitled to a $1,200 bonus.


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