MICHAEL D GIFFORD, Employee

EASY METHOD-NORTH SHORE
DRIVING SCHOOL, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed March 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

giffomi . usd : 145 : 5

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer argues that the testimony presented at the hearing does not support the decision made by the ALJ. The employer presented witnesses to support its position. The ALJ based her findings of fact in large part upon the testimony of the employee. Thus, the findings of the ALJ are supported by the record.

The employer argues that its testimony and evidence was more credible than the employee's testimony. The employer provided exhibits and testimony to establish that the vehicle driven by the employee was inspected by a licensed repair facility immediately prior to the employee's claim. The employer indicates the vehicle maintenance records show maintenance was performed and no defects were discovered. Exhibit 1 is purportedly a service log with an entry on September 2, showing that bulbs were changed. The employer testified that he copied the information on Exhibit 1 from the Firestone invoice. The log was not made by Firestone, but rather by the employer. The employer could have copied information incorrectly or left out a recommendation for suggested further maintenance. Thus, the log is only a factor to be considered, but does not prove conclusively that there was no problem with the car.

The critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the employer's version.

The commission discussed witness credibility and demeanor with the ALJ who held the hearing because it seemed likely to the commission that the owner had an interest in ensuring its vehicle was properly maintained since students would be using the vehicle. Also, the commission was troubled by the fact that the employee initially denied telling the employer that he was not available for work because of personal reasons, but then agreed that he did tell the employer he could not drive anymore for personal reasons. The commission likewise was troubled by the employee's explanation that the personal reasons were the car's problems. However, the ALJ carefully considered witness credibility when reaching her decision. The ALJ remembered the parties and indicated that the employer's representative and witness were exchanging glances and pointing to paperwork which the employer did not ultimately offer to show to the ALJ. The general manager was also, during the hearing, somewhat overbearing. For example, he sat directly across from the employee and looked at the employee in an overbearing manner when the employee testified. On the other hand, the employee was very credible. The ALJ found the employee sincere, both in the manner in which he testified and also the manner in which he sat at the table. The commission found it extremely difficult to discount the ALJ's credibility assessment in this case since the ALJ clearly remembered the case and gave reasons for her determination based upon her personal observations of the manner in which the parties presented themselves. The ALJ did not reach her credibility determination from the testimony of the parties alone. Therefore the commission will defer to the judgment of the administrative law judge as to credibility.

The employer further asserts that the ALJ did not allow the employer ample time to present additional facts and information to be considered prior to rendering a decision. The ALJ ruled that the company representative could not provide testimony because of time restrictions. The employer does not indicate what additional testimony it wished to provide and why this would be likely to change the outcome of the case. The employer also failed to object when the ALJ failed to continue the hearing to allow this additional information. The commission notes that the only real dispute in this case is whether the car had problems which resulted in carbon monoxide leaking into the car, whether the employee brought this to the employer's attention, whether the employer failed to take appropriate action to rectify the problem and whether this was the employee's reason for quitting. The employer presented a great deal of evidence which was contrary to the evidence presented by the employee. The ALJ's decision was based on her credibility determination. Without more detail as to what information the employer wanted to provide and why this information might change the outcome in this case, the commission does not believe that further hearing to allow the employer to provide this information is warranted.

LAURIE R MCCALLUM, COMMISSIONER (dissenting)

I respectfully dissent from the majority opinion. I found the employer in this case to be the more credible party.

The employee testified inconsistently at the hearing. He testified that he did not inform the employer that he was quitting for personal reasons, but then almost immediately admitted that he was not "driving anymore due to personal reasons." He testified that he was "done talking to them about the condition of the car." However, if the employee believed the matter was so serious that it reasonably justified his decision to leave his job, it strains credulity that he would not have mentioned it to the employer when he quit, or that he would have been so evasive when the employer asked why he was declining to perform his work duties.

The employee's testimony that the "personal reasons" explanation he gave for his resignation was intended to refer to the problems with the car was not convincing. "Personal reasons" is common parlance for reasons related to one's life outside of work. It is unlikely that a worker concerned with the safety of the equipment he was assigned to use would characterize this as a personal concern rather than a work concern.

In addition, I found the employer to be credible not only because of the consistency of the testimony offered by its witnesses, but also, taking into account the nature of the employer's business, by the plausibility of its version of events. It is highly unlikely, if there was a problem with a vehicle of the magnitude described by the employee, that the employer would jeopardize its relationships with its customers, who would certainly have noticed the smell and noise claimed by the employee, by ignoring it. Further, it could create serious potential liability for the employer if Firestone had identified a problem which the employer failed to fix and this caused health or safety issues for its workers or student customers.

On this basis, I would reverse the decision of the administrative law judge, and find that the employee did not quit his job for good cause attributable to the employer or for any other reason providing an exception to the quit disqualification.

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