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

MILKA KUTLACA, Employee

MOTIVE EQUIPMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604598MW


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 ineligible for benefits beginning in week 23 of 2008, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. Benefits paid to the employee in the amount of $1,098.00 as a result of the employer's failure will remain charged to the employer's account. No overpayment is created.

Dated and mailed October 27, 2008
kutlami . usd : 132 : 1  BR 319.4

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of appeal tribunal's findings and conclusion that the employer failed, without good cause, to provide information to the department during the fact-finding investigation. The employer asserts in its petition, as it did at the hearing, that it investigated the matter and no one received a message from the department. However, the employer conceded that the number the adjudicator called was the employer's number. The adjudicator indicated that she left a message at that number. Wis. Stat. § 108.09(4o) provides that such departmental record:

constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record.

The employer was given a chance to review and rebut the record. The ALJ found that the employer did not respond to the department's request for information. The ALJ was not persuaded that the employer did not in fact receive the department's message. After reviewing the record, the commission declines to disturb the ALJ's findings and conclusion.

 

cc: Motive Equipment, Inc.


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