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

JASPER D HARTWIG, Employee

THE RADIO DOCTOR OF MADISON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05001725MD


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 beginning in week 11 of 2005, if otherwise qualified.

Dated and mailed June 24, 2005
hartwja . usd : 145 : 1  MC 665.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that at the time of the hearing it was able to present the testimony of only one witness. As such, the employer decided to present the testimony of the president. At the hearing the employer's witness testified that he was not present at the employee's discharge. In addition, he states that he was not present at all the counseling meetings that the supervisor held with the employee. The employee specifically testified that his supervisor informed him that he was being fired because he was not competent, and not meeting the level of performance expected by the employer. Although the employee admitted being tardy, he was not discharged for his tardiness. It was the employer's burden to establish that the employee was discharged for misconduct. The first step in meeting that burden is to establish the reason the employee was discharged. If the employer was uncertain what evidence it needed to present it should have contacted the hearing office for clarification. Further, the employer could have requested a postponement so that it could present the testimony of both its witnesses. Under the circumstances, the commission concludes that further hearing, for the purpose of allowing the employer to present additional evidence is not warranted.



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uploaded 2005/06/27