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

JOHN K KIMANI, Employee

ATTORNEY GENERAL-DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003146MD


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, beginning in week 24 of 2005 the employee is eligible for benefits if he is otherwise qualified.

Dated and mailed January 26, 2006
kimanjo . usd : 164 : 8   PC 714.01  PC 714.02  PC 714.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer has the burden of proof in a misconduct case. However, the employer appeared at the hearing without any witnesses on its behalf. Consequently, the only firsthand testimony regarding the events leading to the discharge came from the employee. While the employee's testimony paints the picture of a less-than-model worker with a questionable work ethic, the employee testified without rebuttal that the employer condoned much of the conduct at issue, that other workers engaged in similar conduct, and that he was never warned about his actions. The commission does not believe that the employee's testimony standing alone warrants a conclusion that he was discharged for actions which evinced wilful and substantial misconduct.

In its petition for review, the employer urges the commission to base a finding of misconduct on the documentary evidence it introduced at the hearing, on the theory that its documents were admissible as public records, records of regularly conducted activity, or as admissions against interest, and because the employee raised no objection to their admission. Further, the employer contends that the employee "admitted" to all of its documents. The commission does not find these arguments persuasive. The documents in question, most of which were prepared in the course of an investigation, were presented without foundation and do not fall within the hearsay exception applying to public records or records of regularly conducted activity. While the employer maintains that some of its documents contain admissions against interest, the fact remains that the employee was not provided with copies of the documents prior to the hearing, did not read them over at the hearing, did not specifically agree that they represented accurate summaries of what he said during the course of the employer's investigation, and was not cross-examined as to any disparities between the statements and his hearing testimony. Consequently, to the extent such evidence may be admissible, the commission does not believe it is entitled to greater weight than the employee's sworn testimony. Finally, the commission disagrees that the employee "admitted" to all of the employer's documents, nor does it believe that his failure to object to or rebut the contents of those documents warrants a conclusion to the contrary. The employer could have brought witnesses to the hearing, but did not do so. The commission agrees with the appeal tribunal that, in the absence of firsthand witness testimony, the employer failed in its burden of establishing that the employee was discharged for misconduct. Accordingly, the appeal tribunal decision is affirmed.

cc:
Miriam Johnson
Jennifer Lattis



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