THOMAS SCOTT, Employee

GREAT LAKES YACHT SALES INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. The commission remands this matter to the department for investigation and further proceedings if necessary regarding the issue of the employer's offer of subsequent work.

Dated and mailed October 31, 2007
scottth . usd : 135 : 1   MC 665.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The notarized statements attached to the employer's petition for commission review cannot be considered by the commission since they are not part of the record for its review. The Notice of Hearing sent to the parties advised them to review the pamphlet "Attending a UI Hearing". This pamphlet was sent to the parties with the confirmation of timely appeal notice and instructs parties to "bring witnesses with personal, firsthand knowledge to the hearing." Parties are also informed that they should not expect to submit written statements of witnesses who are not present at the hearing since they will likely be considered hearsay and inadmissible.

The critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the ALJ was in a good position to make a determination as to credibility and did not credit the employer's version. The commission finds no compelling reason in the testimony or elsewhere in the record to question the ALJ's credibility determination. Therefore it will defer to the judgment of the ALJ as to credibility.

At the hearing, the employer elaborated on the many reasons for the employee's discharge. However, at the time the employer discharged the employee it informed the employee he was discharged because the owner could no longer trust the employee. Where the employer has given the employee a specific reason for discharge, the employer is precluded from advancing other reasons in an attempt to later justify the discharge. Marine National Exchange Bank v. DILHR and Jenkins, Dane County Circuit Court Case No. 148-328 (May 24, 1976);  Arlene N. Jacobs v. Absolutely Beautiful Cleaning, Inc., UI Hearing Decision No. 97608102MW (LIRC October 15, 1998). Although some of the incidents that the employer testified to at the hearing may relate to why the employer lost trust in the employee, the employer did not specifically inform the employee that these incidents were the reason for his discharge. Therefore, the employee was not discharged specifically for his conduct in these several incidents. The employee was discharged because the employer no longer trusted him. Thus, while the employer may have made a valid business decision in deciding to discharge the employee, the employer did not establish that its discharge of the employee was for misconduct within the meaning of the law.

The employer also inquires how is it that the employee can "receive a job offer and not accept it and yet still draw unemployment." The commission does not have jurisdiction to address this issue in this specific case. However, the commission remands this matter to the department for investigation of the employer's subsequent offer of work.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/11/05