BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

JAMES D. PETERSON, Employee

Involving the account of

FOX VALLEY PIZZA, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 85-41700


A department deputy's initial determination held that in the week ending January 12, 1985 (week 2), the employe was discharged by the employer but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes. Accordingly, benefits were allowed. The employer timely appealed and a hearing was held. The appeal tribunal's decision reversed the initial determination and held that the employe is required to repay $408 in benefits received. The employe timely petitioned for review by the Commission.

Based on the evidence and applicable law, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 5 months as a delivery person for the employer, a pizza delivery service. His last day at work was January 10, 1985 (week 2), when he was discharged.

The issue to be resolved is whether the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes. The employer has a policy prohibiting delivery persons from carrying more than $30 in cash while making deliveries. When a higher amount of cash is accumulated, the delivery person is expected to return to the employer's place of business and turn the money in. The employer contended that on January 10, 1985 a supervisor observed the employe carrying an excess amount of cash, that the supervisor admonished the employe and that the employe responded with an obscene and insubordinate remark.

The employer had the burden of proving its contentions. While the employe did not appear and testify at the hearing, neither did the employer present any first- hand evidence of the incident in issue. The employer's representative at the hearing was not the supervisor involved in the alleged incident on January 10, 1985. A disciplinary record noting the employe's termination was offered into evidence by the employer's representative at the hearing but, in the absence of testimony from the directly involved supervisor, that exhibit was, like the testimony of the representative who appeared, hearsay.

Hearsay can be and has been received in administrative hearings and exhibits such as the one here in issue are admissible as business records where, as here, one custodian of those records appeared and identified the exhibit. However, the material (essential) issues of fact in this case are whether the employe did violate the money carrying rule and whether he did address the alleged remark to his supervisor. As to such material facts, the Commission will not make findings based entirely on hearsay. It should be noted that the fact that the employe was discharged (as opposed to quitting, for example) was a fact not only asserted by the appellant-employer but conceded by the employe in his petition for commission review.

The Commission therefore finds that in week 2 of 1985, the employe was discharged by the employer but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes.

DECISION

The appeal tribunal's decision is reversed. Accordingly, the employe is eligible for benefits based on employment with the employer and other employers if he is otherwise qualified.  He is not required to repay the sum of $408 to the Unemployment Reserve Fund.

Dated and mailed February 6, 1986
200 : CD4733     PC 714.07 

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

/s/ Carl W. Thompson, Commissioner

NOTE: The Commission has reversed the appeal tribunal decision because the Commission considers that the hearsay evidence presented by the employer was not a sufficient basis upon which to make findings of material fact necessary to meet the employer's burden of proof.


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