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


NINA C ROSSO, Employe

BEER CAPITOL DISTRIBUTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600104MW


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 unemployment insurance if she is otherwise qualified.

Dated and mailed September 1, 1999
rossoni.usd : 178 : 6   MC 660.01 PC 714.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employe was on notice that a continuing failure to call on her accounts placed her job in jeopardy. The employer further argues that the employe did not demonstrate any good faith effort to improve her performance.

In support of its contentions that she was deliberately failing to call on her accounts, the employer was only able to offer the hearsay summary of an audit in which an office worker called accounts for reaction to its service and the sales manager's recollection of his conversations with various accounts. None of this falls within any hearsay exception. The audit does not constitute a regularly maintained business record but a hearsay summary of numerous conversations. While hearsay may be admitted in unemployment insurance hearings, department rules forbid any ultimate finding be based solely on such hearsay.

The employe admits some neglect of her accounts but testified it was unintentional and the result of poor organization in dealing with a large number of accounts. Since the employe had received warnings about calling on her accounts in the past, this seems to have been a problem for her throughout her employment. However, the evidence does not support a finding that the employe was capable to meeting the employer's expectations and deliberately failed to do so.

The employer has not demonstrated with non-hearsay evidence that the employe intentionally failed to call on her accounts or that she was indeed capable of the work but nevertheless failed to meet the reasonable expectations of the employer. The commission concludes that the employe did not intentionally fail to meet the employer's performance expectations. Therefore the commission affirms the appeal tribunal decision.

cc: ATTORNEY ALLAN D KREZMINSKI

ATTORNEY DAVID SWEET


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