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

DANA M COX, Employee

HOLIDAY STATIONSTORES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402173AP


O R D E R

Wisconsin Statute § 108.09(6)(c) provides that, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings.

Pursuant to authority granted in Wis. Stat. § 108.09(6)(c) and (d), the commission sets aside the appeal tribunal decision issued on October 3, 2006, and the initial determination issued on April 5, 2006, on the grounds of newly discovered evidence, and remands this matter to the department for a new investigation and determination.

Dated and mailed November 10, 2006
coxdana . usd : 132 : 1   PC 711   PC 740

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The initial determination found that the employee was discharged for misappropriation of the employer's funds. The appeal deadline was April 19, 2006. The employee filed her request for hearing on September 14, 2006. As reflected in the appeal tribunal decision, the employee delayed filing a request for hearing because she wanted an attorney to help her clear up the criminal charges first, and she could not arrange for an attorney and borrow money for his fee until after the appeal deadline had passed. The employee filed her appeal after she was found not guilty of theft of property. The employee submitted documentation from the Marinette Municipal Court which indicates that she was found not guilty on August 29, 2006. The commission finds this situation analogous to a case where the employer does not file a timely petition to a decision finding the employee was not guilty of theft from the employer, but later submits a judgment of conviction. In such case, the commission has set aside decisions on its own motion on the grounds of mistake or newly discovered evidence. See Harley-Davidson Motor Co. v. DILHR and Donald E. Simmerman, Case Rebate No. 161-226 (Wis. Cir. Ct., Dane Co., November 13, 1978). The municipal court finding that the employee was not guilty of theft does not mean that she will prevail when the adjudicator conducts an investigation and issues a new determination, as such finding is not binding on the department. However, it is information that was not available at the time the original investigation took place.

 


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uploaded 2006/11/13