STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

LESLIE A ORTA, Employee

ON SITE SOLUTIONS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13401099AP


REMAND ORDER


Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission hereby sets aside the appeal tribunal decision issued in this matter on March 26, 2013, and remands the matter to the department for new hearing and a new decision.

Dated and mailed August 2, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

MEMORANDUM OPINION


The department's initial determination found that in week 7 of 2013, the employer had discharged the employee for misconduct connected with her employment. The employee appealed that determination and a hearing was held before the ALJ on March 26, 2013. At that hearing the employer's witness initially indicated that he had no firsthand knowledge of the facts that led to the employee's discharge. The ALJ then indicated to the employee that the employer has the evidentiary burden of proving that the discharge was for misconduct, and that the employer's witness had not met that burden. The ALJ asked the employee if she wished to testify and the employee declined. Then the employer's witness referred to the department's Discharge Questionnaire (Form UCB-15197-3-E), and more specifically to a written statement the employee had made on this form. The witness asked if he could question the employee regarding that statement, but the ALJ indicated the employee had not been sworn in, and therefore she could not answer any questions.

It was within the ALJ's discretionary authority to swear in the employee so that she could answer the employer's questions regarding the statement she had made on the department form. The ALJ's decision not to ask the employee to be sworn in was an unreasonable exercise of discretion. The employee was present and clearly possessed knowledge concerning her written statement, which was relevant to the issue of misconduct under Wis. Stat. § 108.04(5). Wis. Admin Code § DWD 140.15(2), provides in relevant part: "The administrative law judge has the responsibility to develop the facts and may call and examine any witness that he or she deems necessary and may also determine the order in which witnesses are called and the order of examination of each witness." The primary purpose of an unemployment insurance hearing is to develop the relevant facts, so that the applicable law may be applied to those facts. At the hearing held in this matter the ALJ failed to take a reasonable step to develop the facts. The U.S. Department of Labor has issued Employment Training Handbook No. 382, as part of its responsibility for overseeing the quality of each state's unemployment insurance appellate process. Criterion 23 of this Handbook includes the following:

23. Obtain reasonably available evidence. CRITICAL FAIR HEARING
AND DUE PROCESS ELEMENT.

The Hearing Officer must attempt to obtain the reasonably available,
competent evidence necessary to resolve the issues in the case.

It is the responsibility of the Hearing Officer to develop all the evidence
that is reasonably available and to make a decision according to the
dictates of State law. "Reasonably available" means that evidence or
testimony which is available at hearing and which is critical to the
issues to be decided.

In applying this criterion, consideration must be given to the adequacy
of the Hearing Officer's development of the evidence on each issue: was
it sufficient to secure evidence that was necessary and reasonably
available?

Not only federal guidelines, but also the commission's concern for due process considerations that apply to all hearings, require ALJ's to make reasonable efforts to secure all relevant evidence available from the parties to a hearing. See Kareem E. Canady v. Children's Pantry Family Resource Center, UI Hearing No. 08600122MW (LIRC, March 28, 2008). In the case at hand the employee was available, and at a minimum the ALJ should have asked her to be sworn in and to give testimony in response to the employer's questions. Accordingly, the commission has set aside the ALJ's decision and ordered a new hearing and new decision based on the evidence submitted at the new hearing.

 

ortaleupr : 185


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