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

TIMOTHY A MINCEK, Employee

JLM ADVANCED TECHNICAL SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08402243AP


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 beginning in week 32 of 2008, if otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed December 8, 2008
minceti . usd : 135 : 1   PC 714.07

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer contends that the exclusion of a document dictated the result of the hearing. The document in question is a memorialization of a conversation between the owner, James Hickman and the employee regarding the employee's duties as of August 6, 2008. The owner, James Hickman did not appear to testify on the employer's behalf. The employer asserts that this memoralization of their telephone conversation meets the exception of a record of regularly conducted activity and as such should have been admitted by the ALJ at the hearing.

The relevant statute can be found at Wis. Stat. § 908.03(6) the so-called "business records" exception to the prohibition against hearsay evidence. Wis. Stat. § 908.03(6) provides:

"Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02 (12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness."

This statutory provision allows the admission of certain employer records into evidence if the following certain conditions are satisfied. The information must be compiled at or near the time, and must come from a person with knowledge of the information compiled; in addition, the compilation or the report must be part of a regularly conducted activity. Finally, these factors must be established by testimony from the custodian of the record or another qualified witness. Even when all of these conditions are satisfied, the evidence is to be excluded if the circumstances indicate a lack of trustworthiness in the evidence. See Cynthia M. Ziehr v. AM Community Credit Union, UI Hearing Dec. No. 07605430RC (LIRC January 4, 2008).

In the present case, the memorialization of the telephone conversation between the owner and the employee does not satisfy the evidentiary requirements set forth in Wis. Stat. § 908.03(6). In particular, the employer has not established that this memorialzation of the phone conversation between the owner and the employee was a report compiled as part of a regularly conducted activity in the employer's business. Admission of this document would also deprive the employee of his right to cross-examine the other witness to this phone conversation. Furthermore, the employer's witness at the hearing was unable to provide adequate foundation for the admission of the exhibit.

The ALJ therefore correctly excluded this hearsay document. Without the owner's testimony, the employee provided the most competent firsthand evidence on which the ALJ based her decision. The ALJ therefore concluded that the employee did not quit his employment but rather the employer discharged the employee. Because the facts do not support a finding that the employee's discharge was for misconduct within the meaning of Wis. Stat. § 108.04(5), the commission affirms the appeal tribunal decision. The employer's request for a new hearing is denied based on the commission's conclusion that the document in question was properly excluded from the hearing.

 

cc: Attorney Ryan P. Thompson



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