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

KYLE A KOWALKOWSKI, Employee

XENTEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10606099MW


O R D E R


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 before and decision by a different administrative law judge.

Dated and mailed December 8, 2010
kowalky : 132 : 5  PC 714 : PC 735

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE:         The ALJ excluded the recording of the telephone conversations between the employee and the employer's customers based on Wis. Stat. § 885.365 Wis. Stat. § 885.365(1) provides:

Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28 to 968.37.

(Emphasis added.)

An unemployment hearing is not a court.

Further, Wis. Admin. Code § DWD 140.16(1) provides, in relevant part:

Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings.

The ALJ erred in ruling that the tapes were inadmissable.

cc: Xentel, Inc. (Milwaukee, WI)


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