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


KIMBERLY R TERRY, Employe

PLANNED PARENTHOOD OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600782MW


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed May 6, 1999
terryki.usd : 164 : 3  PC 717  PC 734

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employer argues that it was hampered in the presentation of its case by the fact that it was unable to bring one of its witnesses, Kathleen Janquart, to the hearing. The employer contends that it did not receive adequate notice of the hearing to schedule Ms. Janquart, who travels frequently but could have been available with sufficient notice. While the commission does have the authority to order the taking of additional evidence in matters before it, it declines to do so in this case. The hearing notice was mailed to the employer six days prior to the hearing, as provided for under § DWD 140.06(2) of the Wisconsin Administrative Code, and the employer has not explained why it could not have arranged for the appearance of its witness in that time. Further, the employer did not request a postponement of the hearing date in order to secure the presence of its witness, nor did it ask the administrative law judge to grant a continuance for that purpose. Consequently, the commission is unconvinced that the employer made sufficient efforts to secure the presence of its witness.

Finally, the commission notes that, while the employer contends Ms. Janquart's testimony was vital to its case, it has failed to explain what testimony Ms. Janquart could have offered that would have had any effect upon the outcome of this matter. The letter of discharge indicates that the employe was discharged solely due to unsatisfactory job performance, and not because of any actions on her part which evinced misconduct. While the employer also mentioned a breach of confidentiality, the commission agrees with the appeal tribunal that the employe's actions in allegedly telling another staff member that the employe was no longer going to be supervising one of the clinics cannot reasonably be considered a breach in confidentiality that would rise to the level of misconduct. Under the circumstances, it seems unlikely that Ms. Janquart's testimony would have altered the outcome of this case.

For the reasons set forth above, the commission sees no reason to order any further hearing in this matter and will base its review solely upon the evidence that is already in the record. The evidence in the record indicates that the employe was discharged, but not due to any actions on her part which amounted to misconduct, within the meaning of the law. Accordingly, the appeal tribunal decision is affirmed.


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