ANTHONY DUNAJ, Applicant
R & J FRICKE INC, Employer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 18, 2004. The employer submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the employer unreasonably refused to rehire the applicant, within the meaning of Wis. Stat. § 102.35(3).
After careful review of the entire record, the commission hereby modifies the administrative law judge's findings as indicated below, but affirms her ultimate finding that there was no statutory violation. The commission makes the following:
The employer hired the applicant on June 3, 2001, as a mid-season replacement for a concrete truck driver who quit. At the time he hired the applicant, the employer's owner, Jay Fricke, was concerned about the applicant's poor driving record. However, he decided to take a chance on the applicant because experienced drivers were in short supply. Under the applicable collective bargaining agreement, the applicant was a probationary employee until he had worked for the employer for 1,000 hours. The collective bargaining agreement provides that probationary employees may be discharged without further recourse. Of course, pursuant to Wis. Stat. § 102.35(3), a worker who has sustained a compensable injury may not be discharged or refused rehire without reasonable cause.
On October 12, 2001, the applicant slipped and fell off his truck resulting in a back injury. He was released for light-duty work on or about October 23, 2001, but the employer had no light-duty work available. On November 16, 2001, the applicant attempted to outrun the police on his motorcycle. He crashed the motorcycle resulting in injury to himself, and attempted to flee the police on foot before being caught and arrested for charges that included OWI.
The construction season ended for the employer on Thanksgiving, and since the applicant was not capable of unrestricted duty prior to that date, he did not return to work. In April of 2002, the applicant's wife telephoned Fricke and asked when the applicant could return to work. Fricke told her the applicant had not met the probationary goal of 1,000 hours of work, and that he intended to "go in a different direction," meaning that he did not intend to rehire the applicant. Thereafter, Fricke never received a follow-up call from the applicant.
Fricke chose not to rehire the applicant for several reasons. First, the applicant had a number of absences during his short period of employment. The applicant could not recall why he was absent on July 13, 2001, and he left his timecard blank for that day (the applicant filled out his own handwritten timecards). The applicant also left his timecard blank for an absence on July 25, 2001, and offered no testimony regarding that absence. He marked "lay off" on his timecard for October 2, 8, 9, and 10 of 2001, even though Fricke credibly testified that he never laid off the applicant for any period of time. Fricke verbally reprimanded the applicant for his attendance problems, which he credibly indicated included unexcused absences. Fricke did recall that the applicant had telephoned with excuses for some of his absences, and he could not recall which ones these were. Accordingly, were the applicant's absences the only reason given for the refusal to rehire, reasonable cause would not have been demonstrated. However, it is inferred from the evidence that the applicant did have at least one or two unexcused absences, and that his overall attendance record was a valid consideration in the decision not to rehire him.
Fricke also received several complaints from contractors concerning the applicant's work performance on various jobsites. He discussed these complaints with the applicant. The applicant denied that there were any such complaints, and denied that Fricke talked to him about them. The applicant also objects to Fricke's testimony concerning these complaints, asserting that it constitutes hearsay evidence.
The administrative law judge and the commission found Fricke's testimony to be credible, and the applicant's testimony that he never received any reprimand or discipline from the employer to be incredible. Fricke's testimony would be hearsay with respect to the factual question of whether or not the applicant was guilty of upsetting contractors on the jobsites. However, Fricke's testimony constituted firsthand evidence with regard to whether he actually received complaints from contractors. The commission relies upon Fricke's testimony only as evidence of his state of mind, i.e., whether or not he believed the applicant had upset the contractors. (1) Fricke's state of mind is relevant to the factual question of whether he was thinking about the applicant's work performance or his work injury when he decided not to rehire him. The commission infers from the evidence that it was the former.
Finally, Fricke credibly explained that the November 2001 motorcycle incident played a role in the decision not to rehire the applicant. Certainly, this was a significant consideration for employment that involved regularly driving a concrete truck. This is particularly true given Fricke's legitimate concern over the applicant's prior driving record, which was a consideration at the time he hired the applicant.
Considering all these facts, the commission agrees with the administrative law judge that the employer demonstrated reasonable cause for not rehiring the applicant, and that Fricke's decision was not influenced by the fact that the applicant had sustained a work injury.
Now, therefore, this:
The administrative law judge's findings are modified to conform with the foregoing, and as modified are affirmed. The application for unreasonable refusal to rehire under Wis. Stat. § 102.35(3), is dismissed.
Dated and mailed May 24, 2005
dunajan . wrr : 185 : 4 ND § 7.32 § 8.28
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
cc:
Attorney Joseph J. Voelkner
Attorney Richard Mozinski
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