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

ALBERT J MARCO, Employee

JOSEPH CHRIS PERSONNEL SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005384MD


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 26, 2004
marcoal . usd : 164 : 1   MC 665.08

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer alleges various errors on the part of the administrative law judge. First, the employer argues that the administrative law judge failed to address the issue of whether the employee voluntarily quit his employment. However, at the hearing the employer took the position that the employee was discharged for misconduct, and no evidence was presented to suggest that he voluntarily quit. Consequently, the administrative law judge had no reason to address the question of whether the employee quit.

Next, the employer contends that it was denied due process when the administrative law judge refused to let it cross-examine the employee concerning when he actually sought and obtained employment with a competitor. The employer argues that the determination the employee was not guilty of misconduct resulted from a failure to allow the employer to demonstrate that the employee sought and obtained competing employment while ostensibly working for the employer. This argument fails. The employer did not contend that the employee was discharged for seeking competing employment while still employed with the employer, and the commission agrees with the appeal tribunal that information pertaining to when the employee sought and obtained subsequent employment would not have been relevant to the question of whether his discharge was for misconduct.

Finally, the employer argues that the commission has created a common law rule that prohibits an employer from demonstrating misconduct based on facts the employer learned of after the employee was discharged. The employer argues that such a rule is subject to change in the same manner as it was created and submits that, once an employee has placed in issue his entitlement to benefits, the employee cannot limit the misconduct defense to only those acts known at the time of termination. Again, this argument fails. The statute prohibits the payment of benefits to employees who are discharged for misconduct connected with their work. Obviously, an employee cannot have been discharged for a matter about which the employer only became aware subsequent to the discharge. Consequently, the determination as to whether misconduct has been established is appropriately limited to an analysis of those acts known to the employer at the time of the discharge and which played a part in the decision to terminate the employment relationship. Because the evidence adduced at the hearing failed to establish that the employee was discharged for misconduct connected with his employment, the appeal tribunal decision is affirmed.

cc: 
Attorney Maurice Bresenham, Jr.
Attorney Robert B. Corris


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uploaded 2004/03/30