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

THOMAS D. CORSO, Employee

V/H ASSOCIATES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002145MD


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, the employee is eligible for benefits beginning in week 7 of 2001, if otherwise qualified.

Dated and mailed June 21, 2001
corsoth . usd : 132 : 1 : PC 717  PC 714.12   PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged from his employment but not for misconduct connected with his work. The commission has reviewed the record in this matter and agrees with the administrative law judge's findings and conclusions. The administrative law judge correctly found that the employer did not present non-hearsay evidence to establish that the employee was discharged for misconduct connected with his work. The employee worked out of the employer's Madison office and was supervised by an individual named Ms. Roh. Ms. Roh did not appear at the hearing because she was attending an annual meeting. The employer's witness worked out of the New Berlin office, did not have day-to-day contact with the employee, did not present the employee with any warnings, did not have firsthand knowledge of the events leading to the employee's discharge including the final incident, and was not present at the employee's discharge.

The employer requests that another hearing be held so that it can present the testimony of Ms. Roh. Ms. Roh was scheduled to attend an annual meeting on the day of the hearing. The employer states that when it received the hearing notice on May 2, rather than creating difficulty by rescheduling the hearing, it elected to attend the hearing as scheduled. The employer indicates that it has never been through the process before and brought materials (written documents) which it believed would constitute sufficient evidence to support its position. The employer now recognizes that testimony from Ms. Roh was necessary and requests further hearing in order to present such testimony.

The commission denies the employer's request for further hearing. The department's procedure is to send out a confirmation of timely appeal notice upon receipt of an appeal. The department encloses with the confirmation notice the pamphlet "Attending a UI Hearing." The notice of hearing also instructs the parties to review that pamphlet. The pamphlet provides in relevant part:

Scheduling Accommodations/ Postponements -- If you learn that an appeal is pending, and you are aware of a scheduling conflict, such as a pre-planned trip, convention, medical appointment, court date, etc., PLEASE CONTACT THE HEARING OFFICE IMMEDIATELY IF YOU NEED TO REQUEST ACCOMMODATIONS. The hearing office cannot promise any specific date and time, but may be able to schedule around the conflict. Once the hearing is scheduled, however, parties are expected to make the necessary arrangements to attend the hearing, including taking time off from work or school. Postponements are granted only for exceptional reasons, and must be requested as soon as possible.

The pamphlet contains a "PREPARATION FOR THE HEARING" section which states:

Witnesses -- In deciding who, if anyone, you should bring as a witness, keep in mind that the person should have actual, direct, personal knowledge of the facts relating to the appeal. Character witnesses are generally unnecessary. The hearing will be conducted within the general requirements of the rules of evidence, somewhat like a court, and the ALJ cannot make any findings based solely on hearsay testimony, that is, testimony not within the witness' own knowledge. An affidavit or a signed notarized statement cannot substitute for the personal appearance of a witness. The witness must be present at the hearing, sworn in, and subject to questioning by the ALJ and crossexamination by the other party.

The employer could have requested a postponement on May 2 when it received the notice of hearing. It did not do so. The employer had notice that eyewitness testimony was necessary and written documentation could not substitute for the personal appearance of such witness.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


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uploaded 2001/06/25