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

KAREEM E CANADY, Employee

CHILDRENS PANTRY FAMILY RESOURCE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08600122MW


 

ORDER

Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal 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)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision.

Dated and mailed March 28, 2008
canadka2 . usd : 132 : 1   PC 712  PC 713  PC 715

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The initial determination found the employee voluntarily terminated her employment and not for any reason permitting benefit payment. The employee filed a timely appeal. The employee/appellant appeared at the hearing. The employer/respondent did not. The ALJ sought the employee's contention prior to taking testimony. The employee asserted she was discharged. The ALJ then stated that per the commission's decision in Smith v. Milwaukee Transport Services (LIRC, July 7, 2006)  the commission held that once the claimant alleges a discharge, and the employer did not appear, no testimony need be taken. Based on Smith, the ALJ did not take the employee's testimony.

The ALJ issued a decision finding the employee asserted a discharge and it was the employer's burden to establish misconduct. Since the employer did not appear, it did not meet that burden. Accordingly, the ALJ found the employee was discharged and not for misconduct connected with his work.

In Smith, the commission did find that the employee is presumed eligible for benefits and it is the employer's burden to present evidence of disqualifying misconduct. In Smith, however, the employee/appellant did not appear at the hearing. The employee appeared by a representative. The ALJ in that case had originally found that the employee failed to appear. The commission found that the employee did appear by her representative, which is permitted under the law, but that the employer did not meet its burden of proof.

The commission concludes that where the appellant does appear, the ALJ is obligated to elicit testimony. In the ET Handbook No. 382, 2nd Edition, June 1996, the U. S. Department of Labor, as part of its responsibility for oversight of the quality of States' unemployment insurance appellate process, sets forth criteria for measuring the quality of appeals hearings and decisions. Criterion 23 of the ET Handbook requires the hearing officer to:

23. Obtain reasonably available evidence. CRITICAL FAIR HEARING & DUE PROCESS ELEMENT.

The Hearing Officer must attempt to obtain the reasonably available, competent evidence necessary to resolve the issues in the case.

An unsatisfactory rating is given if the "Hearing Officer did not make a sufficient record to render a decision, because s/he did not obtain sufficient, competent, available evidence to resolve the issues in the case." The ET Handbook provides:

REFERENCE NOTES-CRITERION 23. The intent of this criterion is to ensure that the Hearing Officer functions as a fact-finder.

It is the responsibility of the Hearing Officer to develop all the evidence that is reasonably available and to make a decision according to the dictates of the State law. "Reasonably available" means that evidence or testimony which is available at hearing and which is critical to the issues to be decided.

In applying this criterion, consideration must be given to the adequacy of the Hearing Officer's development of the evidence on each issue: was it sufficient to secure evidence that was necessary and reasonably available?

Where in Smith, the employee appellant appeared only by her representative, there was no reasonably available information for the ALJ to obtain because the representative did not have firsthand evidence to offer. In this case, the employee did appear and the ALJ was obligated, therefore, to develop the record.

Even without the federal criterion, Wis. Stat. § 108.04(13)(a) requires the department to apply the provisions of Chap. 108 which may disqualify the claimant from receiving benefits whether or not the claimant's employing unit questions the employee's eligibility. In addition, under Wis. Admin. Code § DWD 140.15(2) "the administrative law judge has the responsibility to develop the facts and may call and examine any witness that he or she deems necessary and they also determine the order in which witnesses are called and the order of examination of each witness."

As the introduction in the ET Handbook notes, SSA § 303(a)(3) requires the "opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied." The introduction states that, "The criteria in this Handbook are derived from the above provisions of Federal law, and States must meet these criteria to assure that State lower authority appeals operations conform and comply with Federal law." Therefore, the ALJ must satisfy the criteria in the ET Handbook in order to meet federal conformity requirements.

The initial burden at a hearing is not on the employee or the employer, but on the ALJ. The ALJ did not "attempt to obtain the reasonably available, competent evidence necessary to resolve the issues in the case."



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