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

PETER J ANDERSON, Employee

FLEET AND FARM OF GREEN BAY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002683WR


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 ineligible for benefits beginning in week 13 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,206.00 to the Unemployment Reserve Fund.

Dated and mailed October 10, 2001
anderpe . usd : 105 : 1 PC 715

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employee first objects to the surveillance videotape the employee introduced into evidence at hearing, claiming that he did not have opportunity before hearing to view it and prepare a defense. There is no discovery in that fashion available in unemployment insurance matters, however, so the employee's claim of prejudice must be rejected. All parties are entitled to, is to examine the evidence at hearing and be provided opportunity to respond. The employee had that opportunity, and indeed availed himself of it.

The employee also elaborates upon the circumstances of the time periods shown on the videotape. To the extent that the employee makes factual assertions not made at hearing, the commission cannot consider them. The commission's review is a review of the record made before the administrative law judge, as parties are instructed in the hearing materials they receive prior to the hearing. As for the evidence in the record, the commission agrees with the administrative law judge that it establishes the time theft alleged by the employer. The employee's explanations for the times he appears to be hiding and taking unauthorized breaks, are weak, and the most plausible interpretation of the videotape evidence is that the employee indeed was taking unauthorized breaks by hiding himself behind boxes in a remote area of the building where he would not likely be approached.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

 


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uploaded 2001/10/12