Wis.LIRC UC Decision: Sielaff - November 24, 2000 - VL 1007.01 - General - Quit vs. Discharge/Layoff - employee claims he telephoned but could not reach employer - employer did not offer telephone records evidence to the contrary - ALJ could base finding on employee's uncontroverted testimony

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAMES K SIELAFF, Employee

WIERSMA TRUCKING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606281WK

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits are allowed, if the employee is otherwise qualified.

Dated and mailed November 24, 2000
sielaja.usd : 178 : 1 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that its detailed telephone bills prove that the employee did not make repeated phone calls to the employer after his last day of work. However, the employer's telephone records are not in the record. The commission is limited to the record in making its decisions. The mere assertion that these records would demonstrate the employee was lying does not constitute evidence. Since the employee credibly testified that he called but could not reach the employer, the ALJ could base his finding on this uncontroverted testimony. The employer has forfeited its right to contest that finding by not bringing in its records for the hearing despite being on notice that this was the employee's contention.

The employer further argues that no employer witness testified that the employee was asked to bring in his pager and beeper and therefore the ALJ's finding that he was is in error. The employee testified that he was asked to bring them in and the ALJ credited the testimony. The commission accepts this testimony as well.

Finally the employer argues that its failure to file a timely report was for a valid reason. The initial determination states that in the event the decision to allow benefits was reversed and benefits were denied the employer might be relieved of charges to its account if the report was late for a valid reasons. Since no reversal has occurred the reason the report is late is not relevant. Therefore the commission affirms the appeal tribunal decision.

cc: WIERSMA TRUCKING INC

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