¶ 66. {dissenting). The resolution of this case should be a simple matter. The Labor and Industry Review Commission (LIRC) made a finding of fact that deBoer's asserted reason for refusing to rehire Swenson was pretextual. The issue presented by this case is whether there is substantial and credible evidence in the record that supports this finding of pretext.
¶ 67. When reviewing an agency's finding of fact, an appellate court is supposed to search the record for *634reasons to uphold it. Rather than searching for reasons to uphold the agency's finding of fact, the majority scours LIRC's decision, searching for reasons to reverse it. It goes through elaborate gymnastics to undermine the agency's finding of fact and ultimate conclusion. Because I conclude that there is substantial and credible evidence to support LIRC's finding of fact— evidence that the majority either glosses over or ignores — I respectfully dissent.
I
¶ 68. The majority acknowledges that deBoer has the burden to show reasonable cause for its refusal to rehire Swenson, and that reasonable cause is defined as a reason that is fair, just, or fit under the circumstances. Majority op., ¶ 43. It agrees that LIRC made a finding of fact that deBoer's asserted business reason for refusing to rehire Swenson was pretextual. Id., ¶ 54. It recognizes that LIRC's findings of fact must be upheld on review if there is substantial and credible evidence in the record on which reasonable persons could rely to make the same findings. Id., ¶ 30.
¶ 69. Nevertheless, the majority does not squarely address LIRC's finding of pretext. Rather than searching the record for evidence to sustain this finding of fact that the reason was pretextual, the majority takes deBoer's pretextual reason at face value. It implies that Swenson was seeking an "exception" to deBoer's long-standing policy, and it finds that Swenson's "refusal to comply with deBoer's legitimate safety policy" was the reason deBoer refused to rehire him. Id., ¶¶ 59, 61.
¶ 70. Having jettisoned the required analysis, the majority focuses its analysis on straw man diversions. It asserts: "An employer is not obligated to change its *635long-standing and legitimate safety policies under the plain language of [Wis. Stat.] § 102.35(3) for the sake of assisting an employee meet his personal obligations." Id., ¶ 50. It further contends that "LIRC, perhaps subconsciously, erroneously subsumed" the ch. Ill accommodation requirements for employees with disabilities, and that "LIRC's order that deBoer pay Swenson back pay cannot stand on LIRC's 'accommodation' rationale." Id., ¶¶ 52-53.
II
¶ 71. The employment-at-will doctrine generally permits an employer to discharge an at-will employee "for good cause, for no cause, or even for cause morally wrong." Batteries Plus, LLC v. Mohr, 2001 WI 80, ¶ 16, 244 Wis. 2d 559, 628 N.W.2d 364. Under Wisconsin's workers compensation statute, however, this calculus shifts when an employee has been injured on the job. An employer may be liable for up to one year of lost wages if it fails to demonstrate that it had reasonable cause to refuse to rehire an injured employee. Wis. Stat. § 102.35(3).
¶ 72. As the majority explains, "[a]n employer will fail to meet [its burden to show that it had reasonable cause to refuse to rehire the employee] if it is found that the alleged reason for the discharge was actually pretext . . . ." Majority op., ¶ 54 n.19. When the employer's asserted reason is found to be a pretext, it follows that the employer's asserted reason was not the actual reason that the employer refused to rehire the injured employee. Accordingly, a pretextual reason cannot be considered reasonable cause for refusal to rehire, and if the employer's asserted reason is found to be pretextual, the employer fails to meet its burden.
*636¶ 73. The determination of whether the purported reason given by the employer is a pretext is a finding of fact. Id., ¶ 54 (citing Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 124, 519 N.W.2d 713 (Ct. App. 1994)). "When one or more inferences may be drawn from the evidence, the drawing of one of such permissible inferences by the commission is an act of fact-finding, and the inference is conclusive on the court." Farmers Mill of Athens, Inc. v. DILHR, 97 Wis. 2d 576, 580, 294 N.W.2d 39 (Ct. App. 1980).1
¶ 74. LIRC's findings of fact are given deference in great part because they are based on the administrative law judge's assessment of the credibility of the witnesses. Witness credibility is readily gauged by an examiner present at the hearing who can observe the witness's demeanor, mannerisms, tone of voice, and other visual and aural cues. It is less easily assessed by an appellate court's review of a cold transcript. Accordingly, "[t]his court does not weigh the evidence or pass upon the credibility of the witnesses; rather, the weight and credibility of evidence is to be determined by LIRC." Ide v. LIRC, 224 Wis. 2d 159, 165, 589 N.W.2d 363 (1999).
¶ 75. After hearing all of the evidence and evaluating the credibility of the witnesses, the administrative law judge found: "This was a case where one could infer that deBoer was not interested in keeping Mr. Swenson as an employee and used its policy on check-*637rides as its reason[.]" LIRC "adopt[ed] the findings and order in that decision as its own."
¶ 76. On review, a court's role "is to search the record to locate credible evidence that supports LIRC's factual findings." Ide, 224 Wis. 2d at 165. Here, the majority either glosses over or ignores the substantial and credible evidence which supports the finding that deBoer's asserted business reason for refusing to rehire Swenson was pretextual.
¶ 77. DeBoer asserted that it terminated Swenson because he refused to go on a multi-day check-ride, as was mandated by deBoer's policy. It is notable, however, that deBoer has no written policy governing the duration of check-rides or setting forth any requirement that the check-ride constitute a multi-day trip. Rather, its written policy merely provides that returning drivers "complete a minimum of one trip" of unspecified duration:
Drivers who are off work for any reason for more than 2 months are required to:
1. Complete orientation
2. Complete a minimum of one trip with another driver to regain the necessary skills that were not used while off work.
¶ 78. The record further reveals that Swenson was not informed that the check-ride would constitute a multi-day trip which would interfere with his caretaking obligations until the very day that deBoer had scheduled the check-ride to begin. Cindy Vogel, deBoer's workers compensation administrator, discussed the check-ride with Swenson on several occasions in the months prior to his reorientation. Nevertheless, Vogel never informed Swenson that the check-ride would constitute a multi-day trip.
*638¶ 79. Swenson was injured in August of 2005. Vogel testified that in November, she spoke with Swenson about the requirements for returning to work, but they did not discuss any details of the check-ride. She testified further that in December, she told Swenson "[tjhat he would go out with a trainer and then they would go [on] one trip is how I explained it to him, and that would give him the opportunity to reacquaint his skills and to ease back into actually driving the truck[.]" There is no indication that Vogel informed Swenson that the check-ride might constitute a multi-day trip.
¶ 80. On February 22, 2006, shortly before Swenson began reorientation, Vogel sent Swenson a letter that briefly listed the requirements he must fulfill prior to returning to work. The letter mentioned the check-ride requirement, but again, without setting forth any detail. It did not inform Swenson that any arrangements had been made for the check-ride. It did not provide any scheduled date, and again, it failed to inform Swenson that the check-ride could constitute a multi-day trip:
Please note your Professional Driver work manual, drivers off work for more than 2 months are required to complete orientation, complete a minimum of one trip with another driver to regain the skills necessary to safely operate a commercial motor vehicle and pass DOT re-certification tests.
The following arrangements have been made:
Monday - February 27, 2006 3:15 pm DOT re-certification drug and physical Dragt Chiropractic/ Alliant Health, Marshfield WI. A map to their facility is enclosed.
Tuesday - February 28, 2006 8:00 am Orientation, deBoer Blenker WI, check in at the reception desk and ask for Gerald.
*639¶ 81. It is clear from the record that it was not until the very day that Swenson was expected to leave on the check-ride that he was informed that it would constitute a multi-day trip lasting anywhere from a few days to two weeks. The record reveals that Swenson completed the reorientation on March 1. On that day, deBoer's safety director, Dan Garcia, first informed Swenson that a driver had been dispatched from Texas to take him on the check-ride, that he was expected to depart on the check-ride that very day, and that if he did not go he would be processed as a quit.
¶ 82. In an email documenting the incident, Garcia wrote: "Charles completed his re-orientation on 3/1/06. We had scheduled a driver trainer to pick him up on that same day to take him out for his 'check ride' to ensure safety. ... I informed Charles that he would have to do this and he flat out refused to go."
¶ 83. On March 2, within one day of Swenson's refusal, Garcia sent the following email: "Charles has refused to go with a trainer to perform his required check ride upon returning to work. Due to his refusal, he will be processed as a quit effective immediately."
¶ 84. Given this timeline of events set forth above, a reasonable person could infer that deBoer had not implemented its check-ride policy in good faith. A reasonable person might wonder why deBoer had the time and foresight to dispatch a driver from Texas to arrive on March 1, but did not have the foresight to give Swenson any advance notice of the start date or duration of the trip.
¶ 85. There is evidence in the record to support an inference that deBoer knew about Swenson's caretaking responsibilities. When deBoer first acquired the trucking business in August of 2005, it gave Swenson a short survey, explaining that "[t]his survey will be used *640to help deBoer Transportation, Inc., meet your needs." Swenson wrote: "I have to be home from 3:00 p.m. to midnite Mon. [through] Thurs. and by 1 p.m. on Fri. to take care of my father[.]" Swenson filled out an identical survey on February 28, 2006, the day before deBoer fired him. Swenson wrote: "I take care of my dad; he has spinal cancer. I need to be home at nite to take care of him."
¶ 86. A reasonable person could infer that deBoer knew that Swenson would be unable to drop everything to go on a check-ride for an indeterminate duration with no advance notice, and that it had engineered the details in a way that would force Swenson's refusal. LIRC's finding of fact is supported by substantial and credible evidence, and it should be upheld.
Ill
¶ 87. Rather than searching the record to locate the substantial and credible evidence that supports LIRC's finding of fact, the majority engages in diversion. It warps the facts and the agency's decision in an attempt to convert the inquiry into a question of law.
¶ 88. The majority begins by implying that Swenson was seeking an exception from the check-ride policy. See majority op., ¶¶ 59, 61. Yet, this implication is contrary to LIRC's finding of fact. In reliance on the administrative law judge's findings, LIRC determined that Swenson "intended to do the check-ride" and that he "was not asking deBoer for an exception to the policy requiring it."
¶ 89. Next, the majority sets up a straw man to knock down. It contends, "[a]n employer is not obligated to change its long-standing and legitimate safety policies under the plain language of [Wis. Stat.] *641§ 102.35(3) for the sake of assisting an employee meet his personal obligations." Majority op., ¶ 50. This assertion may be accurate — but it misses the mark.
¶ 90. If deBoer was using its long-standing policy as a pretext for refusing to rehire Swenson, then Swenson's refusal to go on the check-ride was not the actual reason that deBoer refused to rehire him. DeBoer's pretextual reason for terminating Swenson cannot constitute reasonable cause.
¶ 91. Finally, the majority erects and then swings at yet another straw man. Wisconsin Stat. § 111.34 provides that employment discrimination includes "[rjefusing to reasonably accommodate an employee's or prospective employee's disability[.]" The majority seizes on the fact that LIRC used the word "accommodation" when it affirmed the administrative law judge's decision. It contends that LIRC "perhaps subconsciously, erroneously subsumed" the ch. Ill accommodation requirements for employees with disabilities, and that "LIRC's order that deBoer pay Swenson back pay cannot stand on LIRC's 'accommodation' rationale." Majority op., ¶¶ 52-53.
¶ 92. The majority misconstrues LIRC's analysis. To support its determination that the check-ride policy was pretext, the administrative law judge relied on the fact that "alternatives were not explored" and that Garcia "took a blind approach to this policy and for them that was the end of it."2 LIRC agreed. It explained: "The simple accommodation [Swenson] requested for *642the testing process was reasonable, and it would not have jeopardized any of the employer's safety concerns. . . . [T]he employer gave no explanation for failing to even consider this request."
¶ 93. LIRC made no reference to Wis. Stat. ch. Ill, and its use of the word "accommodation" cannot reasonably be interpreted as a reference to the chapter 111 requirements for accommodating employees with disabilities. Rather, LIRC appeared to have used the word "accommodation" in the colloquial sense. The fact that deBoer took a "blind approach" and that "alternatives were not explored" strengthened the inference that "deBoer was not interested in keeping Mr. Swenson as an employee and used its policy on check-rides as its reason."
¶ 94. Once the majority's diversions are cast aside, the proper analysis is straightforward. Swenson made a prima facie case that deBoer unreasonably refused to rehire him. As demonstrated above, LIRC found that deBoer's asserted reason was pretext, and that finding is supported by substantial and credible evidence. Because I would uphold LIRC's decision, I respectfully dissent.
¶ 95. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.The workers compensation statute specifically provides that "[t]he findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive," Wis. Stat. § 102.23(1), and that "a court may set aside the commission's award if it "depends on any material and controverted finding of fact that is not supported by credible and substantial evidence." Wis. Stat. § 102.23(6).
The administrative law judge explained: "[Swenson] was asking if some alternative arrangement could be made for the check-ride. As best as one can tell from the testimony of the two deBoer witnesses, alternatives were not explored. They took a blind approach to this policy and for them that was the end of it."