JENNIFER S DEFOE, Employee

FAMILY DOLLAR STORES OF WI INC NO 882, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 43 of 2005, if otherwise qualified.

Dated and mailed February 24, 2006
defoeje . usd : 132 : 8  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged but not for misconduct connected with her work for the employer. The employee did not admit to the witness who appeared on behalf of the employer that she knew her conduct was prohibited by the employer's policy. While the employee understood that letting an employee work for free was prohibited by the employer's policy, she denied that she was aware that allowing her mother to volunteer was in violation of such policy.

The employer needed to present the testimony of the acting store manager, who allegedly informed the employee that her conduct was not permitted by the employer's policy. Further, the employer did not present the policy at the hearing. The employer attempts to present the policy with its petition for review. The employer further requests additional hearing to allow testimony from the acting store manager. After reviewing the relevant portion of the digital recording of the hearing, the commission declines to order additional testimony.

At the hearing the Mr. Igney indicated to the ALJ that he wanted the acting store manager to be contacted by telephone. However, Mr. Igney had not made prior arrangements with the department to allow for the witness to be included in the teleconference. Mr. Igney indicated that he hadn't thought about the need to have the manager testify until the last minute. Mr. Igney acknowledged that he should have contacted the hearing office to allow it to set up a conference call with the witness. Based on the employer's statements to the ALJ, the employer has not set forth an exceptional circumstance that would justify further hearing in this case.

Finally, the commission notes that its rules provide, at Wis. Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must there fore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employer which are not supported by the record.

cc: Family Dollar Store No. 3410

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uploaded 2006/02/27