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


JULANE C MILAND, Employe

SILVER SPRING GARDENS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201002EC


On June 26, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on August 3, 1998, in Eau Claire, Wisconsin, before a department administrative law judge. On August 7, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked more than four years as a laborer for the employer, a horseradish and mustard manufacturer. The employer discharged her by letter on June 5, 1998 (week 23), for alleged falsification of employment application materials at the time of hire. The commission concludes that the evidence is insufficient to establish any falsification by the employe, and so reverses the appeal tribunal decision.

The employer alleged that the employe had a 30 pound lifting restriction, and that her failure to have listed it on her employment application was misconduct for unemployment insurance purposes. The job requirement the employer points to, that the employe allegedly could not meet, is the ability to perform physical work, "exercising up to 50 lbs of strength frequently to lift, carry, push, pull, or otherwise move objects." The employe signed an employer-prepared statement which said the following: "I have reviewed this job description and/or evaluation, and I completely understand its contents. Also, I have been provided with an opportunity to comment on this job description/evaluation both verbally and in writing. I have been given a copy of the job description/evaluation (when used) for my personal use."

The employe injured her back in the fall of 1997, and her rehabilitation did not progress as quickly as the occupational physician working with the employe believed it should have. Someone at the employer was told of permanent work restrictions the employe had; the employer investigated the matter and, upon discovering previous 30 pound lifting restrictions for the employe, discharged her for falsification of her employment application.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Falsification of a job application can constitute misconduct. Any misconduct, though, must be proved by competent evidence, and that is completely lacking in this case. The employer's proof of the employe's lifting restriction is an unsigned February 15, 1980 letter on plain paper, from a Dr. Gerber to an attorney in Milwaukee. As best as the commission can determine, this letter is at least second-level hearsay if not third-level or worse. Wis. Admin. Code § DWD 140.16(1) prohibits, though, deciding an issue solely on hearsay evidence unless the hearsay is admissible under ch. 908, Stats. The only other evidence against the employe is what purports to be a dictation by a physician at the Midelfort Clinic. Again, this is hearsay since the author of the document was not at the hearing to attest to the validity of its contents. Finally, it is questionable whether the employe's failure to mention any alleged lifting restriction would constitute falsification of her employment application. The requirement to which the employer points, is ambiguous. In addition, the statement the employe signed, stated only that she had read and understood the job description; it did not ask whether the employe had any restrictions or, indeed, even whether the employe was able to meet the job requirements.

The commission therefore finds that, in week 23 of 1998, the employe was discharged, but not for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed: September 30, 1998
milanju.urr : 105 : 3 MC 630.20  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's fact-finding. In this case, there is no issue as to credibility; the employer's evidence is hearsay and, as such, not competent to establish the alleged application falsification.


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