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

RICKY P PUCCI, Employee

SHAGBARK APARTMENTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605155RC


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 as of week 19 of 2002, if otherwise qualified.

Dated and mailed December 4, 2002
pucciri . usd : 145 : 1  PC 717  PC 734 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that while nobody was actually found in the resident's apartment, this does not prove that there was nobody in the apartment earlier or that the resident's actions were unreasonable. The resident's allegations are extremely unlikely, in particular as Mr. Powell initially asked the employee to stay with the resident until his father came to help him. In addition, the employee provided firsthand testimony that established that the resident was jumpy, nervous and had been drinking. However, assuming that the resident was reliable, the resident did not testify. The employer provided no firsthand testimony to establish that the resident had $35, or that the employee was the only person who could have taken this money. At a minimum, the resident's father had access to the resident's apartment and if there was any money, the resident's father may have taken it.

The employer further asserts that the employee was told not to return to the resident's apartment but did so anyway. However, the employer presented only hearsay material in support of this contention. Statements about what the witnesses heard from someone else must generally be disregarded as "hearsay." Letters or written statements, even if notarized, cannot substitute for the personal appearance of a witness, and the person responsible for written evidence such as records or reports must be present to testify. The department's administrative rules provide, at Wis. Admin. Code DWD § 140.16(1), that no issue may be decided solely on hearsay evidence, unless the hearsay evidence is admissible under ch. 908, Stats. The employee, on the other hand, testified that he was not told he could not return to the apartment.

The employer states that the witness was ill and was unable to attend the hearing. The employer therefore requests another hearing so that it can present the testimony of that witness. While illness of a witness may be a valid excuse, there is nothing in the file or the record that suggests that the employer requested a postponement. There is a note from the hearing office that indicates that on July 15, 2002, Ms. Weissman called the hearing office to request a postponement because she found out a witness, Mr. Powell, was on vacation. This suggests that the employer was aware of proper procedure for requesting a postponement when a witness was unable to appear at the hearing. However, the employer failed to request a postponement or to ask the ALJ whether the hearing could be continued to obtain the testimony of the witness. Further, had the employer contacted the hearing office in advance, arrangements may have been made to allow the witness to appear by telephone, if she was able to. Rather, the employer failed to take any steps to rectify the situation. As such, the commission concludes that further hearing is not warranted.

cc: Shagbark Ltd. Partnership (Kenosha, Wisconsin)


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uploaded 2002/12/13