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

SUSAN G SCHULTE, Employe

FRANKLIN PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604704

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 September 3, 1999
schulsu.usd : 132 : 2  ET 481 PC 714.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employe did not have reasonable assurance for the 1999-2000 school year. The employer states in its petition that it is difficult to attend hearings because it is a two-person office. The employer also states that it previously forwarded information to the department to refute the employe's claim that she had no assurance of being able to substitute teach for the upcoming school year. However, while it may be difficult for the employer to attend hearings, it is the employer's burden to establish that the employe had reasonable assurance. If the employer does not attend the hearings on such issues, it is difficult for the employer to meet such burden. Further, the letter sent by the employer was not introduced at the hearing by the employer and was not placed into evidence. The commission like the administrative law judge can only base a decision on evidence that is presented at the hearing.

Second, establishing that the employe will be invited to substitute teach in the upcoming year does not establish reasonable assurance in all cases. In this case, the employer did not present any evidence that the employe's opportunity to substitute teach in the upcoming school year would be similar to the opportunity she had in the prior year. The employer did not appear at the hearing to present information such as the number of substitutes the employer anticipated needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Such facts are necessary to move the employe's likelihood of future employment from a possibility to a probability. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

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