J. Peter Melrose, Relator, vs. Quicksilver Express Courier, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-384

 

J. Peter Melrose,

Relator,

 

vs.

 

Quicksilver Express Courier, Inc.,

Respondent,

 

Commissioner of Employment

and Economic Development,

Respondent.

 

Filed September 21, 2004

Affirmed Hudson, Judge

 

Department of Employment

and Economic Development

File No. 19386 03

 

J. Peter Melrose, 6901 73rd Avenue North, Brooklyn Park, Minnesota 55428-1310 (pro se relator)

 

Quicksilver Express Courier, Inc., 203 Little Canada Road East, Little Canada, Minnesota 55117-1681 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, Minnesota 55101 (for respondent commissioner)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Relator Peter Melrose challenges the commissioner's representative's determination that he was disqualified from receiving unemployment benefits because he did not quit his employment for a good reason caused by his employer.  Because we conclude that relator did not quit his employment for a good reason caused by his employer, we affirm. 

FACTS

On January 12, 2003, relator Peter Melrose established an unemployment benefit account following his separation from Delta Consulting.  At that time, Melrose was receiving $350 per week in benefits.  On September 15, 2003, Melrose began working as a contract driver for Quicksilver Express Courier, Inc. (Quicksilver), and, as a result, stopped receiving unemployment benefits.  Melrose contends that he decided to work at Quicksilver and forgo his unemployment benefits because he saw an advertisement from the company stating that he could earn between $30,000 and $50,000 per year working for Quicksilver.  On November 7, 2003, Melrose quit his employment with Quicksilver because he was earning less than he had anticipated based on the advertisement, and less than he was earning when he was receiving unemployment benefits.

            After quitting, Melrose again applied for unemployment benefits, but the department concluded that he was not eligible for benefits because he quit his employment.  Melrose appealed this determination, and the unemployment law judge affirmed the department's determination.  The commissioner's representative held that a preponderance of the evidence did not lead it to conclude that Quicksilver violated an employment agreement, nor did the evidence show that Melrose quit for a good reason caused by the employer.  This certiorari appeal follows.

D E C I S I O N

Melrose contends that he quit his employment with Quicksilver for a good reason caused by his employer.  Specifically, Melrose claims that he relied on an advertisement that stated he would earn between $30,000 and $50,000 per year when he took the position, and when he did not earn that amount, or even earn equal to what he was previously receiving in unemployment benefits, he was required to quit so that he could reinstate his unemployment benefits.

We review the findings of the commissioner's representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, this court views the factual findings in the light most favorable to the decision to determine whether the evidence reasonably sustains them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            "A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's."  Minn. Stat. § 268.095, subd. 2(a) (2002).  Melrose admits that he quit his employment with Quicksilver, and the only issue is whether he quit for good reason caused by his employer.

Whether an employee has good cause to quit is a question of law, which we review de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).  An employee who quits employment shall be disqualified from all unemployment benefits unless the employee quits due to one of the statutorily enumerated reasons including "a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (2002).  A good reason caused by the employer is one that is "directly related to the employment" and is significant enough to "compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment."  Id., subd. 3(a)(1), (2) (2002).  We have held that failure to fulfill a term of employment promised in an employment agreement is good cause to quit.  Hayes v. K-Mart Corp., 665 N.W.2d 550, 553-54 (Minn. App. 2003).

But here the salary stated in the want ad was not a term of relator's employment agreement.  When relator took the job with Quicksilver, he was told that he would earn his salary in two ways:  expense reimbursement and as a percentage of pay for specific deliveries and pickups.  After relator was told how Quicksilver would compensate him, he did not question the company specifically about how much he would be paid, or whether he would make the amount stated in the want ad.  Further, at the time of hiring, Quicksilver did not make any oral representation to relator that he would earn between $30,000 and $50,000 per year.  There is also nothing in the record to show that the want ad was discussed at the time of hiring. 

            Thus, because we conclude that, after accepting a position paid solely on the basis of commission, a reasonable, average person would not feel compelled to quit that position and become unemployed when, after a little more than a month and a half he was not earning as much as anticipated, we affirm the determination of the commissioner's representative. 

Affirmed.