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

ANTHONY K SPRINGFIELD, Employee

ELLIS PAINTING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007345MD


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 34 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,048.00 to the Unemployment Reserve Fund.

Dated and mailed April 29, 2003
sprinan . usd : 132 : 1   - PC 715   PC 717 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner



MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found he voluntarily terminated his employment but not for any reason permitting immediate benefit payment. The employee argues in his petition that the employer's owner, Mr. Ellis, did not actually sign the appeal. However, there is no requirement in the statutes or the administrative code that an appeal be signed. The commission notes that a prior version of ch. DWD 140, then ch. ILHR 140, required that a hearing request be signed by an appellant or its attorney or agent. Even then, however, the commission held that such requirement was "directory" and not "mandatory." See Maes v. Lakeshore Automotive Wholesale, Inc., UI Dec. Hearing No. 97400173AP (LIRC Jan. 30, 1998). However, as noted above, ch. DWD 140 no longer requires that an appeal be signed. The initial determination does state that an appeal must be signed and dated by the employee or employer, or an agent or attorney. However, the department cannot through information contained on the initial determination impose a requirement for appealing that is not mandated by law.

The employee also argues that the ALJ erred in not continuing the hearing for introduction of time cards and so that personnel files could be explored for probative value. The commission disagrees that the ALJ erred. The ALJ adduced relevant testimony in this case that enabled her to make a determination as to whether the employee quit his employment or was discharged, and whether he was eligible for unemployment insurance benefits based on such separation. If the employee believed further documentation was necessary, he should have made arrangements to present such documentation at the hearing by requesting a subpoena to obtain those documents. It was within the ALJ's discretion to order a continuance or to issue subpoenas, but she was not required to do so where, as here, the testimony offered by the parties at the hearing allowed the ALJ to make an informed decision as to the issues noticed for hearing.

The critical question in this case is one of credibility. The employer and the employee gave different versions of the conversation leading to the employee's separation. The administrative law judge, who could observe the demeanor of the witnesses and therefore was in a good position to make a judgment as to credibility, found the employer's version more credible than the employee's version. The commission has found no compelling reason in the record to disturb such credibility determination. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/05/09