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

MICHAEL E FRANK, Employee

MENASHA PACKAGING CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608973WB


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 03, 2005, the department issued an initial determination finding that the employee was discharged for misconduct connected with his employment. The employee filed a timely hearing request, and a hearing was scheduled to be held on January 18, 2006. The employer did not appear at the hearing. The employee appeared by a representative.

The issue to be decided is whether the employee's discharge in week 47 of 2005 was due to misconduct connected with his employment.

An employee is presumed eligible for unemployment benefits, and the party resisting payment must prove disqualification. Kansas City Star Co., Flambeau Paper Co. Div. v. Department of Industry, Labor & Human Relations, 60 Wis. 2d 591, 602, 211 N.W.2d 488 (1973). A challenging employer has the burden to show disqualifying misconduct. Boynton Cab Co. v. Giese, 237 Wis. 237, 243, 296 N.W. 630 (1941).

Although the initial determination found misconduct, the UI hearing is a de novo proceeding and the appeal tribunal decision is based solely on the evidence presented at that time. See Giese, 237 Wis. at 243. The employer failed to appear at the hearing, and no evidence was presented on its behalf. Consequently, the employer failed to demonstrate that the employee was discharged for misconduct.

The commission, therefore, finds that the separation in week 47 of 2005, was not for misconduct connected with the employee's employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2005, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 12, 2006
frankmi . urr : 164 : 8   BR 317  PC 712

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

After conducting a hearing on the merits, the appeal tribunal held that the employee failed to appear and dismissed his hearing request accordingly. However, while the employee did not come to the hearing, he sent a representative to act in his stead.

Wis. Admin. Code § DWD 149.02 provides, in relevant part:

"Any party may appear on the party's own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party. . ." (emphasis added)

Where the employee appeared at the hearing by a representative, it cannot be said that he failed to appear.

In choosing to appear solely by representative the employee took the risk that there would be no competent witness to provide firsthand testimony on the employee's behalf. However, because the employer had the burden of proof and failed to make any appearance at the hearing, the fact that the employee's agent was unable to provide firsthand testimony about the separation was of no consequence. The employee is presumed eligible for benefits, and it fell to the employer to demonstrate that he was discharged for disqualifying misconduct. Absent any evidence from the employer, there is no basis to deny the employee his benefits.

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is as a matter of law.

cc: David A. Volk CPA


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