In re the Claim of Olker

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 29, 1980, disqualifying claimant from unemployment insurance benefits for misconduct. The claimant was employed as a taxi driver for about 10 months. On December 19, 1979 the claimant arrived at his place of employment at 5:00 a.m. and was told by the dispatcher that on the previous day he had booked $10 below the average of all drivers. The claimant told the dispatcher that if he did not like what he was doing why didn’t he fire him. The dispatcher, who was not previously intending to do so, thereupon discharged the claimant and took back his keys and trip card. There is no substantial evidence to support a determination that the claimant voluntarily left his employment without good cause by provoking his discharge (Matter of Senator [Ross], 76 AD2d 652). In these circumstances, a finding that the claimant should have realized that his conduct would probably provoke his discharge is unwarranted (Matter of Raven [Levine], 40 AD2d 128). The decision should be reversed and the matter remitted for further proceedings. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Kane, Main, Mikoll and Casey, JJ., concur.