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

JOHN T ASPEN, Employee

GENERAL MILLS OPERATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610360MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately 2 and 1/2 years as a forklift operator for the employer, a snack food manufacturer. The employee's last day of work was October 10, 2002. He was considered separated from his employment as of October 16, 2002 (week 42).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for a reason that would permit the immediate payment of unemployment insurance benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On October 8, 2002, the Human Resources manager had a conference with the employee to discuss his attendance. The employee had been missing work and arriving late to work. The Human Resources manager offered to alter his schedule or provide bus transportation to the employee if he was having problems getting to work on time.

On October 10, 2002, the employee informed the Human Resources manager that he did not expect that he would need assistance getting to work. On October 11, 2002, the employee had a planned vacation. The employee was not scheduled to work on October 12, 2002.

On October 14, 2002, the employee did not show up for work. The employee's home was burglarized and he reported an absence that day. The employee had to wait for police to show up at his house on October 14, 2002, and as a result, he did not appear for work. Later that day, the employee's supervisor left a message for the employee on his answering machine. The supervisor's message was to the effect that he was fired for failing to report for work on October 12, 2002.

The employer claimed that the supervisor left a message for the employee to appear for a meeting on October 16, 2002. However, the supervisor did not appear at the hearing to establish the content of the message left for the employee. The commission would have to find that the employee quit based solely on the employer's hearsay testimony, which it is prohibited from doing by law. The employee's testimony as to the content of the message left by the supervisor is not hearsay as it constitutes a statement by the employer's agent within the scope of the agent's employment, and during the existence of the relationship. Wis. Stat. § 908.01(4)(b)4.

The employer alleged that the supervisor lacked the authority to discharge the employee. However, there was no evidence that the employee was aware that the supervisor lacked such authority. Further, the employee had no reason to believe the supervisor had made the decision to discharge the employee, rather than that the supervisor was simply relaying a decision made by one authorized to do so. Finally, the statement of the supervisor would not be hearsay even though the supervisor was not authorized to make the statement. See Mercurdo v. County of Milwaukee, 82 Wis.2d 781, 264 N.W.2d 258 (1978).

The employer's witness did not have firsthand knowledge that the employee was scheduled to work on October 12, or that he failed to give notice of his absence on October 14. The commission accepts the employee's unrebutted testimony that he was not scheduled to work on October 12, that on October 14 he provided notice that he would be absent and that he was absent on that date because his home was burglarized. The employer failed to demonstrate that the employee's attendance reached the level of a willful and substantial disregard of the employer's interests.

The commission therefore finds that in week 42 of 2002, the employee was discharged but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04)5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2002, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed May 19, 2003
aspenjo . urr : 132 : 1 :   MC 605.07    PC 714.07 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ believed the employee could have done more to establish the content of the message, such as bringing in a tape recording of the message. However, given the lack of firsthand evidence from the employer, the commission has found no reason to disregard the employee's testimony.

cc: Continental Consultants


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