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

ANNMARIE J KICKHAVER, Employee

SENTRY FOODS NO 2824, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10601824RC


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 3 of 2010, if otherwise qualified.

Dated and mailed July 29, 2010
kickhan . usd : 178 : 1  PC 714.07 PC 714.02

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that it contracts with the secret shopper organization to provide accurate reports on customer service. It trusts that the reports are accurate and does not rely on the recollections of the employees involved. It concludes that the employee was on notice that her job was in jeopardy due to past warnings for the same rule violation.

The issue in this case is the sufficiency of the evidence provided by the employer. The employer argues that its secret shopper reports are evidence of the employee's misconduct. However, those documents are hearsay. The person responsible for the reports was not 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 Wis. Stat. § 908. The hearsay evidence offered in this case was not admissible under Wis. Stat. § 908. It does not constitute a record of a regularly conducted employer business activity. This was generated by an outside party. The employer's witness had no independent knowledge of the incident and the employee did not admit the conduct. She had no actual recollection of the occasion.

It is the employer's burden to prove with non-hearsay evidence that an employee was discharged for misconduct. In this case, it failed to meet that burden. Therefore, the appeal tribunal decision is affirmed.



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