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

ELLEN R HENDRICKS, Employee

RIVERFRONT ACTIVITY CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003360LX


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, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 26, 2007
hendrel . usd : 145 : 1   PC 714.07 PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer argues that the ALJ erred when he concluded that the employer did not meet its burden of establishing that the employee's discharge was for misconduct. The employer argues that the testimony of the two employer representatives was not hearsay. The employer first points out that the employee did not object to testimony of the witnesses as being hearsay and as such, the employer did not have the opportunity to argue that the testimony was not in fact hearsay. The employer proceeds to make this argument in its brief. The employer argues that the testimony of the supervisor and the human resource director, regarding what they saw on the video tapes was testimony about their direct observations. The commission has held, in prior cases, that where a party has a video tape but fails to present that tape, instead presenting testimony of a person who viewed the tape, this evidence "does not meet the so-called 'best evidence' rule and thus is deficient on that ground." Scanlan v. Country Castle, UI Hearing Dec. No. 05005134WK (LIRC February 24, 2006) citing Robinson v. Central Parking System of Wisconsin Inc., UI Hearing Dec. No. 03603846MW (LIRC Dec. 16, 2003). In addition, the tapes were not the "records" of the employer, they were tapes that were produced by the employer's client. Therefore, the commission agrees with the ALJ's conclusion that the employer failed to establish that the employee's discharge was for misconduct connected with his work.

cc: Attorney Ross Seymour



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