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

ERIKA A SMITH, Employee

MILWAUKEE TRANSPORT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603123MW


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

The employee initiated a benefit claim on April 7, 2006 (week 14). On April 26, 2006, the department issued an initial determination finding that the employee was discharged for misconduct connected with her employment. The employee filed a timely hearing request, and a hearing was scheduled to be held on June 5, 2006. The employer did not appear at the hearing. The employee appeared by a representative.

The issue to be decided is whether the employee is eligible for benefits as of week 14 of 2006.

"An employee shall be deemed 'eligible' for benefits for any given week of the employee's unemployment unless the employee is disqualified by a specific provision of this chapter." Wis. Stat. § 108.01(11). 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).

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. Boynton Cab Co. v. Giese, 237 Wis. 237, 243, 296 N.W. 630 (1941). 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 or is otherwise disqualified from receiving benefits.

The commission, therefore, finds that the employee is eligible for benefits as of week 14 of 2006.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2006, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 7, 2006
smither . urr : 164 : 8  BR 317  PC 712

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION

The appeal tribunal held that the employee-appellant failed to appear and dismissed her hearing request accordingly. However, while the employee did not come to the hearing, she sent a representative to act on her behalf.

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 she failed to appear. Frank v. Menasha Packaging Co, LLC (LIRC, May 12, 2006).

In choosing to appear solely by representative the employee took the risk that there would be no competent witness to provide firsthand testimony on her 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 representative was unable to provide firsthand testimony about the separation was of no consequence. While the appeal tribunal decision holds that the employee had the initial burden of proving the nature of the separation, under the statute the employee is presumed eligible for benefits and it fell to the employer to demonstrate that she is disqualified. Absent any evidence from the employer, there is simply no basis to deny the employee her 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:
Attorney Arthur Heitzer
Attorney Autumn M. Kruse


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uploaded 2006/07/10