BOBBIE J BANKS, Employee

KOHLS DEPARTMENT STORES 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 petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition. If the commission's or department's records indicate receipt of the facsimile at a date later than that shown, then the later date shall control.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39(5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at http://dwd.wisconsin.gov/lirc/petition.htm. Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing.

(5) Petitions for review may not be filed by telephone.

The administrative law judge's decision having been dated and mailed on May 29, 2009, the last day on which a timely petition for review could have been filed was June 19, 2009. The petition for review was filed on June 23, 2009.

The employee explained that her petition was late because she inadvertently mailed it to an incorrect address. The employee mailed her petition to the hearing location, which was listed on the hearing notice. The appeal tribunal decision had instructions informing parties how to file an appeal but those instructions do not specify an address to mail the petition to. The instructions state that an appeal may be filed at a UI hearing office or the commission office. The employee was understandably confused about the fact that the hearing location in Racine was not a hearing office.

The commission therefore finds that the petition for commission review was not timely and that the employee has demonstrated that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

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 makes the following:

The employee worked for about one year as a sales associate for the employer. Her last day of work was March 18, 2009 (week 12), when she was discharged.

During the course of her employment, the employee received warnings for engaging in disruptive behavior and being loudly argumentative with supervision. She received a final warning after an incident in which she repeatedly raised her voice after being told by a manager to lower her voice. Thereafter, on March 17, when she was given a directive to change her work station, the employer alleged that she was argumentative and refused to do so. Whereupon, she was discharged on her last day of work.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

It was the employer's burden to present firsthand evidence to establish that the employee's discharge was for misconduct connected with her work. Verbal accounts of the facts are permitted only by "eye witnesses" or other persons having direct knowledge. Statements about what the witnesses heard from someone else must generally be disregarded as "hearsay." Letters or written statements, even if notarized, cannot substitute for the personal appearance of a witness, and the person responsible for written evidence such as records or reports must be present to testify. The department's administrative rules provide, at Wis. Admin. Code § DWD 140.16(1), that no issue may be decided solely on hearsay evidence, unless the hearsay evidence is admissible under ch. 908, Stats. The hearsay evidence offered in this case was not admissible under ch. 908, Stats because the commission does not consider the statements to be business records that would support a conclusion that the employee engaged in the conduct for which she was discharged. The employer in this case failed to present sufficient evidence to support a conclusion that the employee's discharge was for misconduct connected with her work.

The commission therefore finds that in week 12 of 2009, the employee was discharged but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The petition for review is not dismissed. The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 31, 2009
banksbo . upr : 145 : 5  PC 731  PC 714.03

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not reverse the ALJ based on a different view of witness credibility and demeanor. Rather the commission reversed the ALJ as a matter of law because the commission concluded that the employer failed to present sufficient firsthand evidence to support its assertion that the employee had been discharged for misconduct. The employer failed to present firsthand evidence of the March 17, 2009 incident.

cc: Kohl's (Kenosha, Wisconsin)

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uploaded 2009/09/01