Turner v. Mitch Murch's Maintenance Mgmt. Co.

ROY L. RICHTER, Judge.

I respectfully dissent. Although I am sympathetic to Claimant and his hard*231ships, I disagree with the majority that the record does not support a termination date of June 25, 2010. To the contrary, our standard of review constrains this Court to follow the Commission’s finding that Claimant was in fact terminated on June 25, 2010, when he stopped communicating with his employer. This court is to defer to the Commission’s findings of fact. Div. of Emp’t Sec. v. Taney Cnty. Dist. R-III, 922 S.W.2d 891, 393 (Mo. banc 1996). Moreover, the weight to be given to the evidence and the resolution of conflicting evidence are for the Commission, and its choice is binding upon this Court. Brinker v. N & R of Jonesburg, Inc., 350 S.W.3d 874, 876 (Mo.App. E.D.2011). The “Employee Record Notification” dated June 15, 2010, was conflicting, just as the date Claimant quit calling in absent was conflicting, but nevertheless, inconsequential because Claimant did not receive such notification until after he assumed he had been discharged and ceased communication with Employer. The date on the record does not change Claimant’s voluntariness of his decision. The Commission’s findings are supported by competent and substantial evidence and should be affirmed.

In determining whether an employee’s absence from work, stemming from his diagnosis and treatment of throat cancer, and, after regular notice to his employer abruptly terminated such communication, establishes that he “voluntarily quit,” we apply Section 288.050.1(1). This statute states the conditions for when an otherwise eligible claimant for unemployment benefits may be disqualified. A claimant is disqualified from receiving unemployment benefits if it is found that he left work voluntarily without good cause attributable to such work or to the claimant’s employer. Section 288.050.1(1). “Logically, then, those who leave work involuntarily are never disqualified from eligibility under this provision, and of those who do leave voluntarily, some will still be covered under the proviso.” Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 598 (Mo. banc 2008). Although the Difat-tar-Wheaton Court held that leaving work for a non-work-related illness is not, as a matter of law, leaving work voluntarily, the Court found that a factual determination must be made by the court regarding the claimant’s voluntariness. Id. The employee bears the burden of proving he was discharged and did not voluntarily quit. Sartori v. Kohner Props., Inc., 277 S.W.3d 879, 884 (Mo.App. E.D.2009). Claimant here failed to meet this burden.

Instructive here is the case of Reutzel v. Missouri Division of Employment Security, 955 S.W.2d 239, 240-41 (Mo.App. S.D.1997), in which a claimant was absent from work because of a personal illness, but failed to contact the employer to give notice of that absence. See also Turner v. Labor and Indus. Relations Comm’n of Mo., 793 S.W.2d 191 (Mo.App. W.D.1990) (voluntary quit was found when, after checking out of hospital, claimant did not then return to work and gave no notice of this although there was a policy requiring notice). Here, in light of the Commission’s findings of fact, which this Court accepts as true, Claimant voluntarily quit his job with Mitch Murch’s Maintenance. This finding is supported by sufficient evidence demonstrating that Claimant stopped informing his employer of his status while receiving cancer treatments. This Court is to defer to the Commission’s credibility determination that Claimant was not credible in testifying he believed the June 25, 2010 letter conveyed a message he had been discharged. Specifically, the Commission found, “claimant did not legitimately believe he had been discharged as a result of reading that letter, but rather (as he admitted) understood the letter to *232provide his first and last days worked for employer, and no other information.” Claimant ceased communication and instead promptly filed for unemployment benefits. Under Employer’s policy, three days of missing work without calling was considered a voluntary quit.

Did Claimant leave work voluntarily for good cause attributable to the work or employer? Section 288.050.1. “There are two elements of good cause, reasonableness and good faith.” Bunch v. Div. of Emp’t Sec., 965 S.W.2d 874, 878 (Mo.App. W.D.1998). Courts have applied the objective standard of what a reasonable person would do in the same or similar circumstances. Rodriguez v. Osco Drug, 166 S.W.3d 138, 141 (Mo.App. W.D.2005). “Good cause” is:

cause that would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment.... [Good cause] is positive conduct which is consistent with a genuine desire to work and be self-supporting. ... [T]he circumstances motivating an employee to voluntarily terminate employment must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical, and good faith is an essential element.

Id. (quoting Hessler v. Labor and Indus. Relations Comm’n, 851 S.W.2d 516, 518 (Mo. banc 1993)). To demonstrate good faith, a claimant must show that he made an effort to resolve the dispute before he resorted to the drastic remedy of termination of employment. Lashea v. Fin-Clair Corp., 30 S.W.3d 237, 241 (Mo.App. E.D.2000). The claimant bears the burden of proving both elements of good cause. Ewing v. SSM Health Care, 265 S.W.3d 882, 888 (Mo.App. E.D.2008).

Here, Claimant did not follow up with Employer to request a clarification, nor did he ever call his supervisor to discuss his work situation. The Commission found that a reasonable person in Claimant’s situation would have contacted his employer for further clarification, rather than just assume and treat the June 25 letter as if the employment relationship had ended. Further, Claimant lacked good faith in failing to communicate with his employer, or, more specifically, his supervisor, about preserving his employment after receiving the ambiguous June 25 letter. The evidence shows that Claimant had the phone numbers and ability to do so. Conversely, Claimant’s supervisor’s attempts to contact Claimant were unsuccessful because Claimant had not provided his specific contact information. Finding the evidence sufficiently demonstrates that Claimant did not have good cause for voluntarily quitting his employment with Mitch Murch’s Maintenance, there is no need to examine whether the cause for his quit was attributable to the work or employer.

Claimant’s voluntary quit without good cause should disqualify him from receiving unemployment compensation benefits. I would affirm the Commission’s decision.