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


ERIC P REUSS, Employe

PRO TRANS SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605210MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about seven months as a truck driver for the employer, a trucking business. His last day of work was June 18, 1999 (week 25).

The employe appeared at the hearing in this matter. The employer did not. The employe agreed that he worked for the employer, and that he was discharged on June 19, 1999. The employer did not appear at the hearing and therefore the only information the administrative law judge had was a prior statement by the employer that the employe was discharged for failing a drug test. The employe would not confirm or deny taking a drug test. Basically, the employe would not answer any questions relating to his employment or his discharge. He did deny at the hearing that he used drugs.

The issue to be decided is whether the employe was discharged for misconduct connected with his employment.

The employe's responses to questions put to him by the ALJ were evasive. Like an employe's refusal to testify at all, such evasive and non-responsive answers permit the ALJ and the commission to draw an adverse inference that had the employe answered the questions, the responses would have been detrimental to him. However, it remains the employer's burden to establish through non-hearsay evidence that the employe's discharge was for misconduct connected with his work. Accepting that the employer discharged the employe for failing a drug test does not establish that the employe in fact failed such a test. That is, the employe could testify that he was told the reason for his discharge was for failing a drug test but he has no personal knowledge of the actual test results.

The burden was upon the employer to introduce competent and persuasive evidence of the alleged misconduct which led to the employe's discharge by having witnesses present at the hearing who could offer firsthand testimony as to those circumstances. The employer did not meet that burden of proof.

The commission therefore finds that in week 25 of 1999, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 25 of 1999, if he is otherwise qualified.

Dated and mailed October 22, 1999
reusser.urr : 132 : 6  PC 714.03   PC 714.04

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission agrees with the ALJ, as is reflected in the ALJ's decision, that the employe was not a credible witness. However, the commission determines that the employe's incredibility alone does not constitute competent and persuasive evidence that he was discharged for misconduct connected with his employment.


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