Burke v. Dorso Trailer Sales, Inc.

382 N.W.2d 570, 1986 Minn. App. LEXIS 4090

• Court: Court of Appeals of Minnesota
• Decided: March 11, 1986
• Docket: No. C6-85-2001
• Status: Published

Opinions

OPINION

NIERENGARTEN, Judge.

Relator Larry Burke appeals by writ of certiorari from a determination by the Commissioner’s representative that he did not quit with good cause attributable to his employer. We affirm.

FACTS

Respondent Dorso Trailer Sales, Inc. is a company that engages in the business of buying, leasing and selling trailers and related trailer equipment. Sales persons employed by Dorso are paid on a strict commission basis. Because sales are often erratic, Dorso pays its sales persons a weekly advance, or “draw”, against their commissions.

Relator Larry Burke was employed as a sales person by Dorso from February 1982 to January 21, 1985. His 1982 employment contract with Dorso provided that his weekly draw would be $200, but in July 1984 the parties signed a new contract that raised his draw to $300 per week. The contract provided that at the end of each month the amount of Burke’s weekly draws would be subtracted from the total commissions earned that month, and that if the amount of the draws received by Burke exceeded the amount of the commissions he had earned that month, the excess amount would be subtracted from commissions earned during the following month.

Sometime before January 21, 1985, Burke’s sales went down and Dorso informed him that his weekly draw of $300 was going to be reduced to $200. Burke thereupon terminated his employment with Dorso.

Burke applied for unemployment compensation, and was denied benefits when a claim’s deputy determined that he had voluntarily terminated his employment without good cause attributable to his employer. Burke appealed to a referee who determined that Burke had good cause to quit due to the reduction of his draw, which constituted a substantial breach of the parties’ written contract that provided Burke with a $300 weekly draw.

Dorso appealed and a Commissioner’s representative reversed. Although finding that Burke believed the reduction in his draw was permanent, the Commissioner’s representative nonetheless concluded that Burke did not have good cause to quit, citing this court’s decision of Cary v. Custom Coach, Inc., 349 N.W.2d 331 (Minn.Ct.App.1984).

Burke has appealed, claiming that Cary is inapplicable, since there was no evidence in the record indicating that his draws exceeded his commissions, and that a unilateral reduction in his pay in violation of his employment agreement constituted good cause to quit.

ISSUE

Did the reduction of relator’s draw constitute good cause to resign?

ANALYSIS

An individual is disqualified from receiving unemployment compensation benefits if he “voluntarily and without good cause attributable to the employer, discontinued his employment * * *.” Minn.Stat. § 268.09, subd. 1(1) (1984). Once it has been established that an employee has voluntarily quit, he has the burden of proving that his termination was with “good cause attributable to the employer.” Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn.1978). The Commissioner’s conclusion that an employee quit without good cause is not binding on this court if it does not have reasonable support in the findings. Id.

In Rutten v. Rockie International, Inc., 349 N.W.2d 334 (Minn.Ct.App.1984), we first addressed an employer’s withdrawal of advances on an employee’s commissions. There an employee had been originally hired on a strict commission basis with no advances promised, and had been returned to that basis following an experimental program, during which he was paid advances on his commissions. This court held that the employee did not have good cause to quit when his advances were withdrawn, since the employer was justified in returning to the old terms.

In Cary, also, the employee received a regular draw against commissions. When the employee’s sales dropped off and his draw exceeded his commissions, the employer discontinued the draw entirely and the employee quit. This court held that the employer’s actions were not unreasonable, that the draw was not a wage but merely a loan to the employee, and that the employee did not have good cause to quit.

We find the present situation indistinguishable from Rutten and Cary.

DECISION

Affirmed.

FOLEY, J., dissents.