Wis.LIRC UC Decision: Schaetz, Joseph - February 27, 2004 - PC 740 LIRC Review, set-aside for mistake/newly discovered evidence - ALJ refused to allow employer to present certain evidence that employee quit, but ruled in employer's favor - on employee's petition, LIRC initially concluded employee had been discharged, not for misconduct - 'mistake' to arrive at different decision on quit/discharge issue without allowing employer to present its evidence

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

JOSEPH L. SCHAETZ, Employee

COUNTRY EXPRESS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401209AP

The commission issued a decision in this matter on December 5, 2003. The employer timely commenced a proceeding for judicial review of the commission's decision. On February 23, 2004, the court in which the matter was pending issued an Order dismissing the judicial review proceeding. As a result, the December 5, 2003 decision of the commission became final.

Having considered this matter further on its own motion, the commission now issues the following:

ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the Labor and Industry Review Commission hereby sets aside its December 5, 2003 decision in this matter upon grounds of mistake.

This matter is remanded to the department for further hearing before an administrative law judge, acting on behalf of the commission.

At the further hearing to be held in this matter, the employer is to be allowed to present the testimony of Dawn Steffel which it sought to offer at the original hearing. The further hearing will be limited to such testimony of Ms. Steffel, any cross examination of Ms. Steffel, and any rebuttal testimony offered by the employee relevant to that testimony.

Upon the conclusion of such further hearing the matter is to be returned to the commission for it to issue a new decision in the matter, based on the record from both the original hearing and from the remand hearing.

Dated and mailed February 27, 2004
schaejo . upr : 110 : 2 PC 740

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: This case presents an issue as to whether the employee quit or was discharged. The testimony of the employee and of the employer's owner and general manager was in conflict on that point, with the employer contending that the employee told him he quit, and the employee denying that he ever told the employer he quit and asserting that he was instead discharged.
At the hearing, the employer sought to present testimony from Dawn Steffel, the employee's immediate supervisor. In response to a question by the ALJ, the employer indicated that she would testify about a telephone conversation she had with the employee later in the day after the disputed separation from employment occurred, as described in one of the documents which had been submitted to the department in advance of the hearing as a potential exhibit. The ALJ refused to allow such testimony, evidently reasoning that the testimony would have been irrelevant because it concerned contacts between Steffel and the employee that took place after the separation.
The ALJ found that the employee quit and was ineligible to receive benefits. The employee petitioned for commission review. The commission found that the employee did not quit but was instead discharged, not for misconduct, and was thus eligible for benefits.
The document referred to by the employer in the course of explaining what Steffel would testify to was a typewritten statement by Steffel describing telephone contacts she had with the employee in which, according to Steffel, the employee stated that he had quit. Testimony from Steffel to that same effect, would clearly have been admissible and relevant, as an admission by the employee that he had quit his job. The ALJ therefore erred in refusing to allow this testimony.
The ALJ's error in excluding Steffel's testimony was an insignificant one when considered in the context of her ultimate decision that the separation was, as the employer contended, a quit. However, when the commission reversed the ALJ on the "quit or discharge" question to find a discharge instead of a quit, the exclusion of the testimony became significant. The commission has now concluded that for it to decide the case on the basis of a finding that the employee did not quit but was instead discharged, without allowing the employer the opportunity to present the evidence it sought to present from Ms. Steffel on the question of whether the employee quit, entailed "mistake" within the meaning of Wis. Stat. § 108.09(6)(c). The matter should not have been decided without allowing the employer an opportunity to present the testimony in question. For these reasons, the commission has set aside its decision and remanded the matter for further hearing as described in the above Order.

cc:
Attorney Michael L. Hermes
Metzler and Hager, S.C.

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