# Burke v. Dorso Trailer Sales, Inc.

> Court of Appeals of Minnesota · March 11, 1986 · 382 N.W.2d 570

URL: https://www.frixlaw.com/law-library/cases/7875534

## Case

- **Full name:** Larry BURKE, Relator v. DORSO TRAILER SALES, INC., and Department of Economic Security
- **Court:** Court of Appeals of Minnesota
- **Decided:** March 11, 1986
- **Citations:** 382 N.W.2d 570; 1986 Minn. App. LEXIS 4090
- **Precedential status:** Published
- **Opinion:** Dissent by Foley
- **Judges:** Foley, Huspeni, Nierengarten, Waived
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FOLEY, Judge
(dissenting).
I respectfully dissent. In general, “good cause attributable to the employer” does not require that an employer’s actions be negligent or wrongful. Helmin v. Griswold Ribbon & Typewriter, 345 N.W.2d 257, 260-61 (Minn.Ct.App.1984), pet, for rev. denied, (Minn. June 12, 1984). In Helmin , an employer failed to provide an employee with continuous health insurance as promised, and also failed to notify the employee that the employer’s health insurance plan had been cancelled for non-payment of premiums. The Helmin court stated:
The [Commissioner’s] representative improperly applied the legal reasoning of “misconduct” cases which require an employee to act in more than a negligent manner. Under the “good cause” section of the disqualification provisions of the unemployment compensation law, the standard does not require a finding that the employer was negligent or acted wrongfully.
* * * * # *
Claimant only needs to establish that he discontinued his employment for some good cause attributable to his employer. * * * ‘Good cause attributable to the em *572 ployer’ embraces situations where employees, through no fault of their own, leave their employment due to factors or circumstances directly connected therewith.
* * * * * *
The few jurisdictions which have dealt with this type of good cause issue have consistently held that an employee has good cause attributable to the employer to resign his employment when the employer has reduced benefits or breached the employment contract. For example, the refusal of an employer to continue to reimburse an employee for living expenses when he was away, represented a sufficient change in conditions of employment to warrant voluntary leaving with sufficient cause connected with the employment. * * * The failure to pay claimant for a day of sick leave according to the employer’s policy presented just cause for terminating employment. * * * Finally, a claimant who was not furnished gas and oil for his truck as previously agreed with the employer, left for good cause without fault attributable to the employer.
Id. at 260-61 . (emphasis supplied; citations omitted).
The Helmin court cited two cases from Minnesota as authority for its decision. In Hanson v. I.D.S. Properties Management Co., 308 Minn. 422 , 242 N.W.2d 833 (1976), an employer had failed to withhold an employee’s union dues from her paycheck as promised, resulting in her termination for non-payment of union dues. The Hanson court held that good cause was present for the employee’s termination, indicating that although in this case the employer’s conduct was negligent, negligence or wrongful conduct is not required to establish good cause:
Our case law also holds that negligence or wrongful conduct on the part of the employer is not necessary to establish good cause attributable to him. * * A substantial wage reduction can constitute “good cause.” Scott v. The Photo Center, Inc., 306 Minn. 535 , 235 N.W.2d 616 (1975). Given this state of the law, we fail to see how admittedly negligent conduct proximately resulting in termination can be anything but “good cause.”
Id. at 425 n. 1, 242 N.W.2d at 835 n. 1 (citation omitted).
Both the Helmin and Hanson courts cited Fannon v. Federal Cartridge Corp., 219 Minn. 306 , 18 N.W.2d 249 (1945), in which the court noted the policy statement 1 contained in the unemployment compensation statutes and concluded:
There is nothing in this language to justify the conclusion that benefits under the act accrue only when unemployment is the result of some wrongful act or fault of an employer.
Id. at 311 , 18 N.W.2d at 252 (emphasis in original).
Generally, therefore, in cases in which an employer has promised to provide benefits to an employee, if the employer breaches his promise, an employee’s termination will be found to be with “good cause attributable to the employer,” even if the employer’s conduct was not necessarily wrongful.
Recent cases from this court involving the payment of draws against an employee’s commission have, at first glance, appeared to lean in a different direction, although without indicating specifically that this type of benefit or promise to an employee differs from other benefits or promises.
Although the reliance upon the “justification” for the employer’s decision in Rutten v. Rockie International, Inc., 349 N.W.2d 334 (Minn.Ct.App.1984), might appear con *573 fusing in light of Helmin and other decisions discussing “good cause,” the Rutten court also indicated that the reassignment to the employee’s original terms of employment was not a substantial change in the terms of employment, and therefore the employee did not have good cause to quit. This appears to be the real basis for the Rutten decision and fits more closely with the other “good cause” decisions discussed above.
The present case differs from Rutten , since Burke was promised all along that he would receive advances on his commissions. The reduction in Burke’s advances, then, was a substantial change in the terms of his employment, unlike the situation in Rutten . This case would appear closer to the facts of Scott v. The Photo Center, Inc., 306 Minn. 535 , 235 N.W.2d 616 (1975), cited by Rutten , where the court held that “a substantial pay reduction gives an employee good cause for quitting.” Id. at 536, 235 N.W.2d at 617 .
In Cary v. Custom Coach, Inc., 349 N.W.2d 331 (Minn.Ct.App.1984), however, this court specifically distinguished a reduction in pay from a reduction in an advance on commissions. There, we noted that an employee did not have good cause to quit when his draws were discontinued, because the draw “was, in effect, a loan from the employer to be charged against the employee’s commissions.” Id. at 332 .
Despite the majority’s argument, I find the present case to be very different from Cary . Notwithstanding the Commissioner’s finding to the contrary, there is absolutely no evidence anywhere in the record that Burke’s draws exceeded his commissions earned. The only evidence of Burke’s pay was (improperly) submitted to the Commissioner following the hearing before the referee, but even this evidence does not indicate anywhere that Burke’s draws exceeded his commissions. In Cary , on the other hand, this court found the employer’s actions justified because the amount of the employee’s draw over several months had exceeded his commissions by $4,000.
Further, Cary does not indicate that the parties had an agreement concerning the amount of the draw which the employee was to receive. Rather, the amount of the draw given to the employee in Cary apparently varied. Here, on the other hand, the parties had an actual written contract stating that Burke was to receive a $300 per week draw. Breach of that agreement was admitted. I would find that this breach constituted good cause for Burke to resign.
. The policy statement cited by the Fannon court, which remains intact in the 1984 statutes, states:
The legislature * * * declares that in its considered judgment the public good and the general welfare of the citizens of this state will be promoted by providing, under the police powers of the state for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
Minn.Stat. § 268.03 (1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7875534. Public record. Not legal advice.