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

LAHAI STANLEY, Employee

HONDO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03611840MW


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 over one year as a delivery driver for the employer, a soft drink business. His last day of work was November 1, 2003 (week 44). He was discharged on November 14, 2003 (week 46).

In denying benefits the employer asserted that the employee engaged in theft of its product. Such allegation must be proved by clear and convincing evidence. The employer did not submit non-hearsay evidence that met the clear and convincing standard. The employee did not admit to stealing the employer's property.

The commission therefore finds that in week 46 of 2003, 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 46 of 2003, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 10, 2004
stanlla . urr : 132 : 1 : MC 630.14  PC 740 LIRC 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission's reversal of the appeal tribunal decision is based on its conclusion that the employer's evidence failed to meet the clear and convincing standard. Notwithstanding whether the ALJ believed the employee's testimony, the employer failed to present sufficient non-hearsay evidence to meet its burden of proof.

The commission notes that under Wis. Stat. § 108.09(6)(c), the commission has two years to set aside any final decision on the basis of mistake or newly discovered evidence. The commission generally finds that a guilty plea or a conviction following a plea of not guilty constitutes "newly discovered evidence." Therefore, if the employer obtains evidence of such guilty plea or conviction of guilt, it may petition the commission to set aside the decision in this case under the two-year statute.


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uploaded 2004/06/16