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


HEATHER L DALY, Employe

APAC TELESERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98202044LX


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 ineligible for benefits beginning in week 47 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $154 to the Unemployment Reserve Fund.

Dated and mailed March 31, 1999
dalyhe.usd : 132 : 6  PC 712.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that the employe was discharged from her employment and for misconduct connected with her work. The employe first states in her petition that she received the hearing notice too late to ask for time work to attend the hearing. However, there is nothing in the employe's hearing file that indicates the employe contacted the hearing office to request a postponement of the hearing. While it is understandable that the employe faced difficulty in obtaining time off of work, the least the employe could have done was to contact the hearing office to request a postponement or seek alternatives to the requirement that she appear at the time and place set. See Garry v. Federal Express Corporation and LIRC, No. 98-CV-004405 (Wis. Cir. Ct. Milwaukee County Feb. 10, 1999). Accordingly, the commission cannot find that the employe had good cause for failing to appear at the originally scheduled hearing.

The employe also offers in her petition her own version of the events that led to her separation from employment. However, the commission's review, by law, must be based on testimony given at the hearing under oath. The commission cannot consider factual assertions made in the petition for review which are not supported by the record made at the hearing. The only testimony offered at the hearing was that given by the employer's witness. That testimony established that the employe did engage in abusive and insubordinate conduct toward her supervisor. Based on the undisputed testimony given at the hearing, the commission must agree with the appeal tribunal that the employe's actions, which led to her discharge, evinced a wilful and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employe, rising to the level of misconduct connected with her work. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: APAC TELESERVICES

ATTORNEY JOSEPH D BECKER
SAUER BECKER FLANAGAN & LYNCH


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