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

ELLA M JOHNSON, Employee

BELL THERAPY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608173MW


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, if otherwise qualified.

Dated and mailed March 14, 2003
johnsel . usd : 115 :    MC 659.02

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The employee worked not quite two years as a mental health worker for the employer, a residential facility for mentally ill adults. It was part of her job responsibilities to ensure the safety of residents.

The employee was discharged for allegedly sleeping on the job during her 11pm- 7am shift on July 25, 2002. She had received a written warning accompanied by a 5-day disciplinary suspension on April 12, 2002, for sleeping on the job; and had received the May 31, 2002, memo to all staff from the employer's program directors reminding employees that sleeping while on an assigned shift is grounds for immediate termination.

The employer appeared at the hearing by program director Mary Wierman who testified that Jackie Montgomery, who was in charge of the third shift on July 25, 2002, phoned her and reported that she had observed the employee sleeping on that shift, and that Doris Alderson had taken photos of it (these photos became hearing exhibit 4). Neither Montgomery nor Alderson testified at the hearing.

The employee denied that she had been sleeping on the third shift on July 25, and testified that she didn't know when the photos had been taken.

The employer has the burden to prove misconduct and must do so through competent and credible evidence. All of the evidence offered by the employer to support its allegation that the employee was sleeping on the job on July 25 was unsubstantiated hearsay. Montgomery did not testify as to her observations and Alderson did not appear at the hearing to identify the photographs. An ultimate finding of fact may not rest exclusively on hearsay evidence. As a result, it would have to be concluded that the employer failed to sustain its burden to prove misconduct.

In its petition for commission review, the employer argues that sleeping on the job by a mental health worker in this type of facility constitutes misconduct. The commission would tend to agree, but the employer failed to prove that the employee was sleeping on the job on the date in issue. The employer also argues that, even though it did not provide any first-hand witness, it did provide photographs. The problem, as discussed above, is that the employer failed to provide any non-hearsay evidence linking the photographs to a particular date or time.

 


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