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

JEFFERY E CUTTER, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10607155MW

ORDER


Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission sets aside its March 25, 2011 decision and the October 13, 2010 appeal tribunal dismissal decision in this matter, and remands the matter to the Department of Workforce Development for de novo hearing and decision on the issue of the claimant's alleged concealment of the nature of his separation from Staffing Services.

Dated and  Mailed June 2, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

On the UCB-16 Separation Notice, the employer's president indicated that the employee "quit, could no longer make it to work due to car problems." It was this statement, coupled with the employee's failure to have responded to the department's request for information, that led the department to find that the employee had concealed a quit from the employer. This evidence is legally insufficient to establish concealment, however.

First, the employer's statement is ambiguous because it might mean only that the employee no longer could work for the employer because of a lack of transportation, and that in itself is not a quit of employment. Second, as a matter of law, "[m]ere silence is not a representation. It implies no purpose or design. Active concealment consists of a suppression of a fact and implies a purpose or design." Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am. Jur., Fraud and Deceit, p. 851, sec. 77. The employee's failure to have responded to the department's request for information is no more than silence and, even if construed as a lack of cooperation, is insufficient to establish the fraud of concealment. See Lubow v. LIRC, slip op. at 5, Case No. 91-CV-427 (Washington Cty. Cir. Ct. January 30, 1992) ("The mere lack of cooperation by the plaintiff is not sufficient to meet [the] burden [of establishing fraud].").

The department has the burden of proof to establish concealment, see Lubow, slip op. at 5, and , as a form of fraud, concealment "must be proven by clear and satisfactory evidence," a higher degree of proof than in ordinary civil cases.  Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 98.  The evidence before the department did not meet this standard. 


cutteje . upr : 105 : 2 : BR 330

cc: JEFFERY E CUTTER #247365

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