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

STEVE M OWENS, Employee

APPETIZE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400169AP


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 and decision.

Dated and mailed September 16, 2011
owensst . usd : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The ALJ ceased questioning the employer after determining that the employer's witness did not have first-hand information regarding the reason for the discharge. The commission noted in Canady v. Children's Pantry Family Resource Center Inc., UI Dec. Hearing No. 08600122MW (Mar. 28, 2008), that DOL criteria state that the ALJ must obtain reasonably available information. This would include information from the employee who was at the hearing. Further, the administrative code states that the ALJ has a responsibility to develop the facts and call witnesses the ALJ deems necessary. Wis. Admin. Code § DWD 140.15(2).

Further, the employer states in its petition that it has attended other hearings where the person who discharged the employee was not present, and the hearing was not handled like the present case. The employer states that given its past experience, it did not request a postponement based on the unavailability of the individual who performed the discharge.

 


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